Access Board Issues Draft Final Rule for Outdoor Developed Areas

by Jennifer Skulski

Accessibility guidelines for outdoor developed areas managed by federal agencies are one step closer to becoming standards. On October 19, 2009, the U.S. Access Board released the Draft Final Accessibility Guidelines for Federal Outdoor Areas covered by the Architectural Barriers Act.

This draft marks another milestone of more than 15 years of work by the Access Board and vested stakeholders including regulatory negotiation in 1999. The issuance of this draft document brings the adoption of accessibility guidelines for outdoor developed areas closer to finalization and implementation under the Architectural Barriers Act. It further defines accessibility considerations for outdoor recreation environments and provides needed guidance to land managers on minimum standards to design for the inclusion of people with disabilities in these outdoor environments.

Several changes can be noted in the 2009 Draft Final Guidelines from the Notice of Proposed Rule issued in 2007. The most significant change is the provision for trails. The Access Board has provided clarification of the definition of a trail for pedestrian use and the indication that shared use paths will be addressed separate from trails exclusively for pedestrian use. Addressed shared use paths for future rulemaking will also help to distinguish more appropriately and accurately between the different types of paths that could be found in outdoor recreation environments. Previously, if a trail met a condition for departure from the technical provisions, such as compliance would not be feasible due to the terrain, the trail would be required to be accessible up to the point of departure but not beyond that point. The Draft Final guidelines permit the trail a conditional exception at that segment of trail affected by the terrain, then beyond the segment it would be required to comply with the technical provisions once again. This change likely could have favorable positive affects in new trail construction where a section of the trail may be challenging or require some assistance, but the remainder of the trail is built accessible providing an exceptional recreation experience to a scenic vista, meadow, bird sanctuary, or even a waterfall.

In addition, there are new requirements for trailhead signage to provide users with more objective information on the trail conditions. The provisions require new signs provided at trailheads on newly constructed or altered trails to include information on the length of the trail or trail segment; surface type; typical and minimum tread width; and typical and maximum running slope and cross slope. Communicating the trail conditions will give users the ability to make informed decisions on which trails and trail segments are appropriate in relation to their own individual ability.

While the revision provides greater access on trails and clarification of language for designers, the requirements for outdoor constructed features such as picnic tables, fire rings, grills, fireplaces, wood stoves, trash and recycling receptacles, water hydrants, utility and sewage hookups, outdoor rinsing showers, benches, telescopes, and periscopes are less stringent than the 2007 Notice of Proposed Rule. Scoping requirements for accessible picnic tables and grills are reduced from 50 percent to 20 percent. Benches will now only be required to have adjacent clear floor space for companion wheelchair seating, but no longer be required to have a back support and at least one arm rests. At least 20 percent of each type of outdoor constructed feature provided within a viewing area to will be required to be accessible. There are technical provisions for outdoor rinsing showers and new requirements for routes over beach dunes.

Lastly, the Draft Guidelines distinguish between the use of various surface materials including asphalt, concrete, boards and other surfaces. This is the first time in the history of the accessibility standards that technical provisions are different or significantly less stringent based on the type of construction material that is used. NCA submitted critical comment to the Access Board on this provision with the rationale that if this approach were used in the standards, a steel-beam constructed building would have more stringent requirements than a wood-frame constructed building. If the new construction or alterations are planned accordingly and proper construction techniques are followed, deviation should not be greater than the industry construction tolerance when building outdoor recreation access routes or trails with different surface materials. The Draft Final technical provisions define an “accessible trail” to have a 30 ft section with a 10 percent slope and 5 percent cross slope. This additional allowance for slope and cross slope on surfaces that are not asphalt, concrete or board, and are already more difficult to traverse has an adverse and disparate impact on people with disabilities.

The Access Board received public comment through December 18, 2009 and staff is currently reviewing the comments. More than 100 comments have been received through online submittals at Regulations.gov. Now it will just be a matter of time to see how much influence public comment will have on the final guidelines.