Draft October 27, 2008 for discussion purposes. This document needs review from the USDOT Disability Law Coordinating Council.
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Several Federal laws require public facilities and federally funded projects to ensure access for people who have disabilities. These laws require that new facilities be accessible to and usable by people with disabilities, and reference an accessibility standard as a measure of minimum compliance in new construction. The standards include special provisions for alterations and historic facilities. The three most significant Federal laws that affect design, construction, alteration, and operation of pedestrian and bicycle facilities, recreational trails, and transportation enhancement projects are:
The Architectural Barriers Act of 1968 (ABA) requires access to facilities designed, built, altered, or leased with Federal funds. The current ABA standard is the Uniform Federal Accessibility Standards (UFAS). This will change as the standard agencies adopt the new ADA/ABA Guidelines and other guidelines that are currently under development (see below).
The Rehabilitation Act of 1973 prohibits discrimination on the basis of disability in programs conducted by Federal agencies, in programs receiving Federal financial assistance, in Federal employment, and in the employment practices of Federal contractors.
Section 504 states: "no qualified individual with a disability in the United States shall be excluded from, denied the benefits of, or be subjected to discrimination under" any program or activity that either receives Federal financial assistance or is conducted by any Executive agency or the United States Postal Service. The current Section 504 standards are the Americans with Disabilities Act Accessibility Guidelines (ADAAG), sections 1-10, 1991 and UFAS. The U.S. Access Board published ADA and ABA Accessibility Guidelines for Buildings and Facilities, in the Federal Register on July 23, 2004, published technical amendments on August 5, 2005, and supplementary information on March 23, 2007. See www.access-board.gov/guidelines-and-standards/buildings-and-sites for more information. The ADA/ABA Guidelines will replace the 1991 ADAAG as the standard agencies adopt the new ADA/ABA Guidelines and other guidelines that are currently under development (see below).
The U.S. Department of Transportation (U.S. DOT) has adopted the July 2004 ADAAG (as amended on October 2, 2005) as its regulatory standard, effective November 29, 2006; see https://www.transit.dot.gov/regulations-and-guidance/civil-rights-ada/americans-disabilities-act. This standard provides the minimum legal requirements. This standard is primarily applicable to buildings and transit facilities. When Federal-aid highway program funds are used for parking facilities, or for buildings such as transit facilities, rest areas, information centers, transportation museums, historic preservation projects, or other projects where pedestrians are expected, the project must be designed to be accessible to, and usable by, people with disabilities, whether or not the project is within the public right-of-way. This standard does not account for terrain and other factors that are encountered on public rights-of-way (streets, roads, highways) or along shared use paths or trails.
Section 508 establishes requirements for electronic and information technology developed, maintained, procured, or used by the Federal government. Section 508 requires Federal electronic and information technology to be accessible to people with disabilities, including employees and members of the public. The current Section 508 standard is the Section 508 Standards for Electronic and Information Technology; work is currently underway to update these standards. See www.access-board.gov/guidelines-and-standards/communications-and-it/about-the-section-508-standards.
The Americans with Disabilities Act of 1990 (ADA) prohibits discrimination on the basis of disability in employment, State and local government, public accommodations, commercial facilities, transportation, and telecommunications. The current title III standard is ADAAG, sections 1-10, 1991; the current title II standards are either ADAAG or UFAS.
The U.S. DOT rule for Programs or Activities Receiving Federal Financial Assistance is 49 CFR Part 27. The section for FHWA-funded facilities, 49 CFR 27.75, has not been updated since 1986, and does not incorporate the ADA, ADAAG, or ADA/ABA guidelines. Where Part 27.75 does not conflict with the ADA or guidelines based on the ADA/ABA, Part 27.75 remains in effect.
Regulations implementing section 504 and the ADA contain requirements that apply to existing program operations and adopt technical standards to guide new construction and alterations. Although specific technical standards have not yet been finalized for public rights-of-way, shared use paths, outdoor recreation access routes, or recreational trails, State and local government agencies and private sector entities nevertheless have statutory responsibilities to provide opportunities for people with disabilities. The U.S. Department of Justice (USDOJ) Preamble to the Title III Regulation states: "To the extent that a particular type or element of a facility is not specifically addressed by the standards, the language of this section is the safest guide." See Section 36.401, General Substantive Requirements of the New Construction Provisions. This section explains that new and altered facilities must be "readily accessible to and usable by individuals with disabilities" (phrase used repeatedly in the USDOJ regulation: 28 CFR Part 36).
In addition, each State building code references an accessibility standard, either an adaptation of ADAAG, a unique State-developed code, or the American National Standards Institute (ANSI) A117.1 standard incorporated in the International Building Code (IBC). See www.ansi.org/.
Where a standard does not fully address or is silent on any situation, practitioners should use the most relevant pending standards or best practices. For example:
ABA and ADA Accessibility Guidelines
The U.S. Architectural and Transportation Barriers Compliance Board (Access Board) published ADA and ABA Accessibility Guidelines for Buildings and Facilities, in the Federal Register on July 23, 2004, and published technical amendments on August 5, 2005. The USDOJ has given notice of its intent to adopt these guidelines as the standards for new construction under the ADA, which sets design requirements for the construction and alteration of places of public accommodation, commercial facilities, and State and local government facilities. See www.ada.gov/NPRM2008/ADAnprm08.htm. (The U.S. DOT has adopted these guidelines, as noted above.)
The ABA ensures access to facilities designed, built, altered, or leased with Federal funds. On November 8, 2005, the General Services Administration (GSA) adopted these accessibility standards for federally funded facilities (the U.S. DOT is a client agency of GSA). These standards will take effect as the standard agencies adopt the new ADA/ABA Guidelines and other guidelines that are currently under development. The U.S. DOT's Accessibility Regulations are 49 CFR Part 37--Transportation Services for Individuals with Disabilities, amended in the Federal Register, Vol 71, No. 209, Monday, October 30, 2006, Page 63263, and effective November 26, 2006. HTML / PDF.
Until the Access Board's guidelines are adopted as standards by Federal rulemaking agencies, the current standards set the minimum requirements for compliance. Where relevant standards do not exist, agencies must determine what constitutes the required accessible design. Access Board guidelines in development or pending adoption are a good source of guidance.
The Access Board is developing guidelines of particular importance to FHWA-funded projects:
Public Rights-of-Way. The Access Board is developing guidelines for Accessible Public Rights-of-Way and expects to issue a proposed rule. The Board's latest draft was revised November 23, 2005. FHWA supports the use of these guidelines for sidewalks and street crossings as best practices to ensure accessibility.
Outdoor Developed Areas. The Access Board established the Regulatory Negotiation Committee on Accessibility Guidelines for Outdoor Developed Areas, which issued its report on September 15, 1999. This report provides scoping and technical criteria for the design of new recreational trails and the alterations of existing trails. Rulemaking has not moved forward, except for Federal Lands (next bullet). FHWA supports the use of these guidelines for shared use paths, trails, and outdoor recreation access routes as best practices to ensure accessibility.
Outdoor Developed Areas on Federal Lands. The Access Board issued Proposed Guidelines for Federal Outdoor Developed Areas on June 20, 2007, based on the Outdoor Developed Areas report, to apply to Federal lands. These guidelines are based mostly on the Outdoor Developed Areas Report. These rules would not be binding on non-Federal lands; FHWA supports the use of the Outdoor Developed Areas Report (previous bullet) for shared use paths, trails, and outdoor recreation access routes as best practices to ensure accessibility for non-Federal lands.
The concept of program accessibility (established in regulations implementing the Rehabilitation Act and extended to State and local governments under title II of the ADA, irrespective of Federal funding), should guide the planning, design, construction, maintenance, and operation of federally funded programs and facilities. Projects using Federal funds must ensure access for people with disabilities to the extent feasible. Program accessibility prohibits discrimination in programs, services, or activities. Program accessibility does not necessarily require excessive retrofitting of existing facilities, if the program can be offered through alternative methods. For example, a public meeting to discuss a Federal-aid project may be moved from an inaccessible location to an accessible location to maintain program access.
Project sponsors must not install barriers or other features that would make it more difficult for people with disabilities to use a facility.
[Excerpt from Clarification of FHWA's Oversight Role in Accessibility]
Sidewalks and Street Crossings
Where sidewalks are provided, public agencies shall provide pedestrian access features such as continuous, unobstructed sidewalks, and curb cuts with detectable warnings at highway and street crossings. 28 CFR 35.151(c), referencing 28 CFR Part 36, App. A, ADA Accessibility Guidelines (ADAAG). The FHWA encourages the use of ADAAG standards. If pedestrian signals are provided, they must have a reasonable and consistent plan to be accessible to persons with visual disabilities.
Sidewalks and street crossings generally should use the guidelines the Access Board is proposing for public rights-of-way. The FHWA distributed an information memorandum on November 20, 2001, stating that Designing Sidewalks and Trails, Part II, Best Practices Design Guide can be used to design and construct accessible pedestrian facilities. This report provides information on how to implement the requirements of Title II of the ADA. Designing Sidewalks and Trails for Access is the most comprehensive report available for designing sidewalks and street crossings and contains compatible information on providing accessibility with information published by the Access Board in the ADAAG. This report can be found at www.fhwa.dot.gov/environment/bicycle_pedestrian/publications/sidewalk2/.
When the Access Board completes guidelines for public rights-of-way and they are adopted by the United States Department of Transportation and DOJ as standards under the ADA and Section 504, they will supersede the currently used standards and criteria.
When Federal-aid highway program funds are used for parking facilities, or buildings such as transit facilities, rest areas, information centers, transportation museums, historic preservation projects, or other projects where pedestrians are expected, the project must meet the current applicable accessibility standards, whether or not the project is within the public right-of-way. The ADAAG includes special provisions for building alterations and for historic preservation projects.
The design standards for shared use paths and trails are specific to the function of the path or trail:
Most trailside and trailhead structural facilities (parking areas, restrooms) must meet the ADAAG standards.
Public and private entities that provide shared use paths and other trails must make sure they maintain program accessibility regardless of the funding source for trails. Failure to provide some kind of program of accessible transportation and recreational opportunities for people with disabilities may constitute discrimination. FHWA funding programs for trails and nonmotorized transportation facilities provide opportunities for States to plan, develop, reconstruct, and maintain trails. See Links.
Planners and designers of shared use paths and trails should seek opportunities to incorporate accessible features and elements, and include trail routings that meet accessibility criteria to ensure that there are transportation and recreation opportunities for a variety of users within an overall trails program. For example, although some mountain ridge trails cannot be made accessible, the Appalachian Trail Conservancy has developed several accessible segments to provide program accessibility.
Where trail-related facilities, such as parking, shelters, toilets, drinking fountains, and other features are provided on or along an accessible trail site, they must provide some level of accessibility and be served by an accessible route. Trail planners and designers should accommodate people with disabilities who may access trail facilities by horse, ATV, snowmobile, or by other means.
Other facilities, including transportation connections and trailside and trailhead facilities, also must be constructed, altered, and operated to be accessible to people with disabilities. Transportation and pedestrian links serving or intersecting accessible recreational trails should contain accessible elements, including sidewalks, curb ramps, detectable warnings, and similar features.
Where shared use paths and pedestrian trails cross highways or streets, the crossing must meet the same requirements as street crossings, including the provision of detectable warnings. Where shared use paths and pedestrian trails cross highways on bridges or other structures, the structures and their ramps should meet the Access Board's guidance for pedestrian overpasses and underpasses (see R302.3 - 302.7) and for ramps (see R407).
Note: The U.S. DOT rule for Programs or Activities Receiving Federal Financial Assistance is 49 CFR Part 27. The section for FHWA-funded facilities, 49 CFR 27.75, has not been updated since 1986, and does not incorporate the ADA, ADAAG, or ADA/ABA guidelines. Where Part 27.75 does not conflict with the ADA or guidelines based on the ADA/ABA, Part 27.75 remains in effect. Section 27.75(a)(3) allows pedestrian overpasses and underpasses (for example, over and under highways or railroads) to have gradients no steeper than 10 percent. Therefore, because there are no specific regulations under the ADA/ABA that specify a standard for overpasses, underpasses, or bridges, the FHWA regulation establishes a maximum grade of 10 percent. However, FHWA recommends that structures and their ramps should promote best practices for accessible facilities, and meet the Access Board's guidance for pedestrian overpasses and underpasses (www.access-board.gov/guidelines-and-standards/streets-sidewalks/public-rights-of-way/proposed-rights-of-way-guidelines/chapter-r3-technical-requirements) and for ramps (www.access-board.gov/guidelines-and-standards/streets-sidewalks/public-rights-of-way/proposed-rights-of-way-guidelines/chapter-r4-supplementary-technical-requirements).
Project sponsors must not install barriers or other features that would make it more difficult for people with disabilities to use a trail. For example, waterbars are inaccessible constructed features that must not be used on shared use paths or accessible trails. Grates can be dangerous for any user with narrow wheels or for people who use canes.
Bollards, Gates, and other Barriers
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