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Rule2023-16149

Accessibility Guidelines for Pedestrian Facilities in the Public Right-of-Way

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Published

August 8, 2023

Effective

September 7, 2023

Issuing agencies

Architectural and Transportation Barriers Compliance Board

Abstract

The Architectural and Transportation Barriers Compliance Board (Access Board or Board) issues its final rule that provides minimum guidelines for the accessibility of pedestrian facilities in the public right-of-way. These guidelines, once adopted, would ensure that facilities used by pedestrians, such as sidewalks and crosswalks, constructed or altered in the public right-of-way by Federal, state, and local Governments are readily accessible to and usable by pedestrians with disabilities. When the guidelines are adopted, with or without modifications, as accessibility standards in regulations issued by other Federal agencies implementing the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, and the Architectural Barriers Act, compliance with those enforceable accessibility standards is mandatory.

Full Text

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<title>Federal Register, Volume 88 Issue 151 (Tuesday, August 8, 2023)</title>
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[Federal Register Volume 88, Number 151 (Tuesday, August 8, 2023)]
[Rules and Regulations]
[Pages 53604-53662]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-16149]

[[Page 53603]]

Vol. 88

Tuesday,

No. 151

August 8, 2023

Part II

Architectural and Transportation Barriers Compliance Board

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36 CFR Part 1190

Accessibility Guidelines for Pedestrian Facilities in the Public Right-
of-Way; Final Rule

Federal Register / Vol. 88 , No. 151 / Tuesday, August 8, 2023 /
Rules and Regulations

[[Page 53604]]

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ARCHITECTURAL AND TRANSPORTATION BARRIERS COMPLIANCE BOARD

36 CFR Part 1190

[Docket No. ATBCB 2011-0004]
RIN 3014-AA26

Accessibility Guidelines for Pedestrian Facilities in the Public
Right-of-Way

AGENCY: Architectural and Transportation Barriers Compliance Board.

ACTION: Final rule.

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SUMMARY: The Architectural and Transportation Barriers Compliance Board
(Access Board or Board) issues its final rule that provides minimum
guidelines for the accessibility of pedestrian facilities in the public
right-of-way. These guidelines, once adopted, would ensure that
facilities used by pedestrians, such as sidewalks and crosswalks,
constructed or altered in the public right-of-way by Federal, state,
and local Governments are readily accessible to and usable by
pedestrians with disabilities. When the guidelines are adopted, with or
without modifications, as accessibility standards in regulations issued
by other Federal agencies implementing the Americans with Disabilities
Act, Section 504 of the Rehabilitation Act, and the Architectural
Barriers Act, compliance with those enforceable accessibility standards
is mandatory.

DATES: The final rule is effective September 7, 2023.

FOR FURTHER INFORMATION CONTACT: Scott Windley, Office of Technical and
Information Services, Architectural and Transportation Barriers
Compliance Board, 1331 F Street NW, Suite 1000, Washington, DC 20004-
1111. Telephone (202) 272-0025 (voice) or (202) 272-0028 (TTY). Email
address <a href="/cdn-cgi/l/email-protection#acdec3dbeccdcfcfc9dfdf8190cd8cc4dec9ca91" http: board.gov">board.gov</a>">row@access-<a href="http://board.gov">board.gov</a></a>.

SUPPLEMENTARY INFORMATION:

I. Executive Summary

The U.S. Access Board issues its final rule for accessibility
guidelines for pedestrian facilities in public rights-of-way (PROWAG or
guidelines). These guidelines are issued under Title II of the
Americans with Disabilities Act of 1990 (ADA) and the Architectural
Barriers Act of 1968 (ABA). Title II of the ADA applies to State and
local government facilities, among others. The ABA applies to
facilities constructed or altered by or on behalf of the Federal
Government, facilities leased by Federal agencies, and some facilities
built with Federal funds.
The purpose of these guidelines is to ensure that pedestrian
facilities located in the public right-of-way are readily accessible to
and usable by pedestrians with disabilities. Despite on-going efforts
to improve access, pedestrians with disabilities throughout the United
States continue to face major challenges in public rights-of-way
because many sidewalks, crosswalks, and other pedestrian facilities are
inaccessible. Equal access to pedestrian facilities is of particular
importance because pedestrian travel is the principal means of
independent transportation for many persons with disabilities.
Key accessible features of pedestrian facilities specified in these
guidelines include:
Pedestrian Access Routes: Sidewalks, shared use paths and other
pedestrian circulation paths must contain a ``pedestrian access
route,'' which is required to be accessible to and traversable by
individuals with disabilities. The portions of these sidewalks and
paths that comprise the pedestrian access route must be wide enough to
minimize the possibility of a pedestrian using a mobility device
falling into a roadway when passed by another pedestrian. Pedestrian
access routes have specified cross slopes and running slopes so that
they are traversable by pedestrians using manual wheelchairs or other
mobility aids without exhaustive effort. Surfaces of paths in the
pedestrian access route must be firm, stable, and slip resistant,
without large openings or abrupt changes in level. Objects may not
hazardously protrude onto sidewalks, shared use paths, or other
pedestrian circulation paths.
<bullet> Alternate Pedestrian Access Routes: When an entity closes
a pedestrian access route for construction, it must provide a temporary
alternate pedestrian access route with basic accessible features.
Alternate pedestrian access routes ensure that construction in the
public right-of-way does not prevent pedestrians with disabilities from
reaching their destinations.
<bullet> Accessible Pedestrian Signals: All new and altered
pedestrian signal heads installed at crosswalks must include
``accessible pedestrian signals'' (APS), which have audible and
vibrotactile features indicating the walk interval so that a pedestrian
who is blind or has low vision will know when to cross the street.
Pedestrian push buttons must be located within a reach range such that
a person seated in a wheelchair can reach them. The walk speed used to
calculate the crossing time allows pedestrians with disabilities
sufficient time to cross.
<bullet> Crosswalks: Curb ramps and detectable warning surfaces are
required where a pedestrian circulation path meets a vehicular way.
Crosswalks at multilane roundabouts and channelized turn lanes must
have additional treatments that alert motorists to the presence of
pedestrians or slow or stop traffic at those crosswalks.
<bullet> Transit Stops: Boarding and alighting areas at sidewalk or
street level, as well as elevated boarding platforms, must be sized and
situated such that a person with a disability can board and alight
buses and rail cars. Pedestrian access routes must connect boarding and
alighting areas and boarding platforms to other pedestrian facilities.
Transit shelters must have clear space for use by a person in a
wheelchair.
<bullet> On-Street Parking: On-street non-residential parking must
have designated accessible parking spaces sized so that a person with a
disability may exit a parked vehicle and maneuver to the sidewalk
without entering a vehicular way. Standard size designated accessible
on-street parking spaces must be situated near an existing crosswalk
with curb ramps.
These minimum guidelines will become enforceable once they are
adopted, with or without modifications, as mandatory standards under
the ADA by the U.S. Department of Justice (DOJ) and the U.S. Department
of Transportation (USDOT), or the four Federal agencies that set
standards for the Federal Government under the Architectural Barriers
Act--the U.S. Postal Service (USPS), General Services Administration
(GSA), U.S. Department of Defense (DOD), and U.S. Department of Housing
and Urban Development (HUD)).

II. Legal Authority and Need for Rulemaking

These guidelines are issued pursuant to the ADA and the
Rehabilitation Act, which provide statutory authority for the Access
Board to issue minimum accessibility guidelines to ensure that
transportation facilities are usable by persons with disabilities. See
29 U.S.C. 792(b)(3)(B), 42 U.S.C. 12204. These guidelines serve as the
minimum requirements for enforceable standards issued by other agencies
pursuant to their responsibilities under the ADA and the ABA. 29 U.S.C.
792(b)(3)(B); 42 U.S.C. 4151 et seq., 12134(c), 12149(b).
As described in the Rulemaking History section below, these final
guidelines have been long awaited, particularly by state and local
governments subject to Title II of the ADA. Both the Access Board's
2004

[[Page 53605]]

Americans with Disabilities Act and Architectural Barriers Act
Accessibility Guidelines (2004 ADAAG/ABAAG), and the Board's initial
1991 Americans with Disabilities Act Accessibility Guidelines, were
developed primarily for buildings and facilities on sites. 36 CFR part
1191; 56 FR 35408 (July 26, 1991). While some of the requirements can
be readily applied to pedestrian facilities in the public right-of-way,
others need substantial modification, and many issues specific to
public rights-of-way were simply not addressed. Further, the magnitude
of existing physical constraints in public rights-of-way poses unique
considerations that are not present in the context of buildings and
sites.
In the absence of final technical requirements for accessibility of
pedestrian facilities, state and local governments have been left to
determine on their own how to comply with the ADA's existing mandate to
make public pedestrian transportation facilities accessible. The lack
of final Federal standards has contributed to uncertainty about the
relevant standards, which has resulted in courts determining technical
requirements for accessibility, in some cases applying requirements for
buildings and sites to public rights-of-way, although public rights-of-
way are, for the most part, not specifically addressed by these
standards (see e.g., Kirola v. City & Cty. of S.F., 860 F.3d 1164 (9th
Cir. 2017) (finding that ADAAG applies to public rights-of-way);
Fortyune v. City of Lomita, 766 F.3d 1098 (9th Cir. 2014) (applying the
2010 ADA Standards to diagonal parking in public rights-of-way in the
absence of enforceable accessibility standards for public rights-of-
way); see also Sarfaty v. City of L.A., No. 2:17-cv-03594-SVW-KS, 2020
U.S. Dist. LEXIS 40893 (C.D. Cal. Feb. 7, 2020) (concluding that
neither PROWAG draft guidelines nor the 2010 ADA Standards are
applicable to on-street parking).
In addition, the Federal Government similarly lacks accessibility
criteria for public rights-of-way, although there are numerous Federal
sites that contain public rights-of-way, such as national parks,
medical and educational campuses, and military installations.
Consequently, the Federal Government, which seeks to be a leader in
accessibility, has been without clear, specific, enforceable technical
standards for accessibility in public rights-of-way. These final
accessibility guidelines for pedestrian facilities in public rights-of-
way will serve as the technical basis of enforceable standards issued
under the ABA by GSA, USPS, DoD, and HUD. See 29 U.S.C. 792(b)(3)(B);
42 U.S.C. 4151 et seq.

III. Rulemaking History

The Access Board began developing accessibility guidelines for
pedestrian facilities in public rights-of-way shortly after the ADA was
enacted in 1990. In 1992, the Board issued proposed guidelines for
state and local government facilities, including pedestrian facilities
in public rights-of-way, followed by interim guidelines in 1994 that
also contained provisions for public rights-of-way. 57 FR 60612
(December 21, 1992); 59 FR 31676 (June 20, 1994).
In response to the proposed and interim guidelines, the Board
received numerous public comments that indicated a need for further
outreach, education, and research on accessible pedestrian facilities
in public rights-of-way. Consequently, when the Board issued its first
final guidelines for state and local government facilities in 1998, the
requirements for pedestrian facilities in the public right-of-way were
not included. 63 FR 2000 (January 13, 1998).
In 1999, the Access Board established a Federal advisory committee
to recommend accessibility guidelines for pedestrian facilities in
public rights-of-way. The committee included a wide range of
stakeholders, including representatives of state and local governments,
the transportation industry, disability rights advocacy organizations,
and other interested groups.\1\
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\1\ The following organizations were members of the advisory
committee: AARP, America Walks, American Association of State
Highway and Transportation Officials, American Council of the Blind,
American Institute of Architects, American Public Transit
Association, American Public Works Association, Association for
Education and Rehabilitation of the Blind and Visually Impaired,
Bicycle Federation of America, Californians for Disability Rights,
Canadian Standards Association (Technical Committee on Barrier-Free
Design), City of Birmingham (Department of Planning, Engineering and
Permits), Council of Citizens with Low Vision International,
Disability and Business Technical Assistance Centers, Disability
Rights Education and Defense Fund, Federal Highway Administration,
Hawaii Commission on Persons with Disabilities, Hawaii Department of
Transportation, Institute of Traffic Engineers (now called Institute
of Transportation Engineers), Los Angeles Department of Public Works
(Bureau of Street Services), Massachusetts Architectural Access
Board, Municipality of Anchorage, National Center for Bicycling and
Walking, National Council on Independent Living, National Federation
of the Blind, New York State Department of Transportation, Paralyzed
Veterans of America, Portland Office of Transportation, San
Francisco Mayor's Office on Disability, State of Alaska, TASH, Texas
Department of Transportation, and The Seeing Eye.
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In 2001, the advisory committee presented its consensus
recommendations to the Board. See U.S. Access Board, Building a True
Community: Final Report of the Public Rights-of-Way Access Advisory
Committee. (Jan. 10, 2001). Based on the advisory committee's
recommendations, the Access Board developed draft accessibility
guidelines for pedestrian facilities in the public right-of-way, which
it made available for public review and comment in 2002. 67 FR 41206
(June 17, 2002). In 2005, the Board published revised draft guidelines,
also seeking to gather data for a regulatory assessment of the
guidelines' potential costs and benefits. 70 FR 70734 (November 23,
2005).
Following the 2005 release, the Access Board continued to further
improve the draft guidelines, engaging numerous stakeholders and
sponsoring research on various key provisions. The Access Board also
engaged in substantial education and outreach efforts, conducting
training programs around the country, and answering questions on its
technical assistance hotline. In July 2007, the Public Rights-of-Way
Access Advisory Committee released a 108-page planning and design guide
for alterations based on the 2005 draft guidelines.
In July 2011, the Access Board initiated the instant rulemaking,
issuing a Notice of Proposed Rulemaking for Accessibility Guidelines
for Public Rights-of-Way (NPRM). See 76 FR 44664 (July 26, 2011);
Notice of Proposed Rulemaking--Correction, 76 FR 45481 (July 29, 2011).
The NPRM was supported by a regulatory analysis based in part on cost
estimates provided through a 2010 interagency agreement with the Volpe
National Transportation Systems Center (Volpe Center). See Regulatory
Assessment of Proposed Guidelines for Pedestrian Facilities in the
Public Right-of-Way & Appendix (June 2011); Volpe Center, ``Cost
Analysis of Public Rights-of-Way Accessibility Guidelines'' (November
29, 2010), both available at <a href="https://www.regulations.gov">https://www.regulations.gov</a> in rulemaking
docket (ATBCB-2011-0004).
The NPRM requested public comments on all provisions of the
proposed Accessibility Guidelines for Public Rights-of-Way (proposed
rule or proposed guidelines). In particular, the Access Board sought
comments from regulated entities, including state and local
governments, on the costs and impacts of certain portions of the
proposed rule. The comment period ended on November 23, 2011, and was
subsequently reopened until February 2,

[[Page 53606]]

2012.\2\ During the two comment periods, 460 commenters submitted
approximately 600 comments. The Board also held public hearings in
Dallas, Texas and Washington, DC in fall 2011.
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\2\ Before the NPRM's initial comment period ended on November
23, 2011, three national associations of local elected officials
requested that the Access Board extend the comment period to allow
local governments additional time to respond to the proposed rule. A
national association of engineering companies also requested an
extension of the comment period. The Access Board thus reopened the
comment period through February 2, 2012. See Notice of Proposed
Rulemaking--Reopening of Comment Period, 76 FR 75844 (Dec. 5, 2011).
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On February 13, 2013, the Board issued a supplemental notice of
proposed rulemaking (SNPRM) announcing its intent to add requirements
for shared use paths (SUPs) to the proposed guidelines for pedestrian
facilities in the public right-of-way.\3\ 78 FR 10110 (Feb. 13, 2013).
The SNPRM specified which provisions of the proposed rule would be
changed to include requirements for SUPs. During the 90-day comment
period that followed, 55 commenters provided feedback on the provisions
outlined in the SNPRM.
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\3\ In March 2011, the Board issued an advance notice of
proposed rulemaking announcing its intent to develop accessibility
guidelines for SUPs and noted that it was considering including the
SUP requirements in the guidelines for pedestrian facilities in the
public right-of-way. 76 FR 17064, 17070 (March 28, 2011). The Board
initially determined that SUPs would be addressed in a separate
rulemaking, and thus did not include SUPs in the proposed public
right-of-way guidelines. However, upon further consideration, the
Board determined that SUPs were sufficiently similar to other
pedestrian circulation paths such that they should be included in
the final rule for pedestrian facilities in the public right-of-way.
The Board then issued the SNPRM informing the public of its decision
to include SUPs in the proposed guidelines and soliciting comments
regarding the specific provisions that would apply to SUPs. 78 FR
10110 (Feb. 13, 2013).
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The Board carefully reviewed the public comments received in
response to the NPRM and SNPRM, consulted with DOJ and USDOT, and
revised the rule text for final publication. In 2015, the Board entered
into a second interagency agreement with the Volpe Center to assess
costs of the final provisions. However, in January 2017, in response to
Executive Order 13771 (January 30, 2017), which required that agencies
identify two regulations for elimination for every new regulation
proposed and that the total incremental cost of any new regulations and
deregulatory actions be zero, the Board ceased work on the PROWAG final
rule. Staff shifted efforts to education, outreach, and technical
assistance. From 2017 through 2022, Board staff addressed hundreds of
technical assistance inquiries related to PROWAG.
In 2021, following issuance of E.O. 13992 (January 20, 2021), which
rescinded E.O. 13771, the Board resumed work on the PROWAG rulemaking
and entered into a final interagency agreement with the Volpe Center to
prepare the final regulatory impact analysis (FRIA). The FRIA is
available in the docket for this rulemaking on <a href="http://regulations.gov">regulations.gov</a> and on
the Access Board's website, www.access-<a href="http://board.gov">board.gov</a>.
In consideration of the FRIA, public comments and testimony,
feedback from other Federal agencies, and many years of close
collaboration with stakeholders, the Access Board now issues these
final guidelines on accessible pedestrian facilities in the public
right-of-way.

IV. Summary of Significant Changes

The significant changes to the final rule text from the versions
proposed in the NPRM and SNPRM are as follows:
<bullet> Alterations. There are three major changes with the way
alterations are treated in the final rule. First, any portion of a
pedestrian facility that is altered must be altered to comply with
these guidelines regardless of the intended ``scope of the project'' by
the entity undertaking the alteration (R201.1). This approach is
consistent with the way accessibility guidelines for buildings and
sites are applied. The change is described in the Major Issues section
below.
Second, in the final rule, facilities and portions of facilities
that are ``added'' to an existing, developed public right-of-way are
``alterations,'' and are subject to the requirements for altered
facilities (see R104.3; R201.1; R202). This includes that compliance
with the requirements is required to the maximum extent feasible where
existing physical constraints make compliance with the applicable
requirements technically infeasible (R202.3). In the proposed rule,
added elements were treated as new construction and subject to full
compliance with all applicable requirements regardless of existing
physical constraints (NPRM R202.2). This change is addressed in the
Major Issues section below.
Third, altered facilities must be connected to an existing
pedestrian circulation path by a pedestrian access route (R202.2). In
the proposed rule, only select alterations required a connection;
however, to ensure that pedestrians with disabilities can realize the
benefits of an altered pedestrian facility that is made accessible
consistent with these guidelines, the final rule requires all altered
facilities to connect to a pedestrian circulation path.
<bullet> Manual on Uniform Traffic Control Devices for Streets and
Highways (MUTCD). In the final rule, MUTCD provisions are not
incorporated by reference. The Board proposed to incorporate by
reference various sections of the MUTCD in the NPRM. As explained in
the major issues section below, this created confusion as to the
application of those provisions in the context of PROWAG. Consequently,
the Board has stated all required technical provisions directly in the
rule text, many of which were taken from the MUTCD, as explained in the
Section-by-Section discussion below.
<bullet> Alterations that Trigger Installation of Accessible
Pedestrian Signals. In the NPRM, the Board indicated that the
alteration of a signal controller and software, or the replacement of a
signal head, would trigger the requirement to install an accessible
pedestrian signal (NPRM R209.2). Upon consideration of public comments,
the Access Board acknowledges the diverse nature of alterations that
affect pedestrian signals, and declines in the final guidelines to list
specific actions that trigger the requirement to install accessible
pedestrian signals. Rather, pedestrian signals are subject to the same
alteration requirements as other pedestrian facilities. The entity
making the alteration will assess, according to requirements in the
guidelines as adopted by USDOT and DOJ, whether installation of an
accessible pedestrian signal is required. The Board notes that USDOT
and DOJ may provide further specifics as to alterations triggering
installation of APS in their rulemakings adopting these guidelines.
<bullet> Crosswalk Treatments at Roundabouts. The final rule
expands the crosswalk treatment options among which jurisdictions must
select for installation at multilane pedestrian crossings at
roundabouts to include: a traffic control signal with a pedestrian
signal head, a pedestrian hybrid beacon, a pedestrian actuated
rectangular rapid flashing beacon, and a raised crossing. This change
is discussed in the Major Issues section below.

V. Summary of Comments and Major Issues Raised by Commenters

A. Overview of Commenters

In response to the NPRM, 460 commenters submitted approximately 600
comments on the provisions of the proposed rule, including 25 state
departments of transportation and highway administrations, 2 state
utility organizations, and 1 state transit

[[Page 53607]]

authority. Eighty-seven local government organizations commented,
including city and county departments of transportation, engineering,
public works, and planning; city councils and mayor's offices; and
highway districts and transit authorities.
The Access Board received comments from approximately 255
individuals commenting on their own behalf, including persons with a
range of disabilities who will directly benefit from these guidelines,
and mobility specialists with experience teaching persons with
disabilities how to navigate public rights-of-way. Individual
commenters also included numerous civil engineers and planners with
expertise in the design and construction of pedestrian facilities.
In addition, the Access Board received comments from
representatives of approximately 90 organizations including national
and local disability rights advocacy organizations, engineering
companies, law firms involved in ADA litigation, professional
associations, and pedestrian and citizen advocacy organizations.
In addition to soliciting written comments, the Board also held two
public hearings on the proposed rule. NPRM, 76 FR at 44664. In Dallas,
Texas, on September 12, 2011, twelve witnesses testified regarding the
proposed guidelines. See PROW NPRM Public Hearing, Dallas, Sept. 2011,
Docket ID ATBCB-2011-0346. Witnesses included engineers and architects,
local government officials, and disability rights advocates, among
others. Id. Fifteen individuals testified at a public hearing in
Washington, DC on November 9, 2011, including representatives from
organizations working with people with disabilities, private industry,
and professional associations. See Transcript from PROW NPRM, Docket ID
ATBCB-2011-0607.
In response to the SNPRM to add shared use paths to the proposed
rule, the Access Board received comments from 55 commenters. Eighteen
state and local government entities commented, as well as seven
disability rights organizations, three engineering companies, four
citizens' organizations, and two industry associations. In addition,
over 20 individuals, including industry professionals and persons with
disabilities, responded to the SNPRM.
The Access Board appreciates the robust and thoughtful public
response to the PROWAG rulemaking, and carefully considered all
testimony and comments received in response to both the NPRM and the
SNPRM. Commenters provided feedback on many specific provisions of the
proposed rule. The majority of these comments are addressed in the
Section-by-Section Analysis in Section VI of this preamble. However,
numerous commenters raised concerns regarding four issues: the
application of the guidelines to new construction and alterations; the
requirements regarding accessible pedestrian signals; the requirement
for pedestrian signals or pedestrian hybrid beacons at roundabouts; and
the extension of the leveling out of intersections to pedestrian
crossings. The Board addresses these major issues below.

B. Major Issues

1. Application of the Guidelines to New Construction and Existing
Facilities
Treatment of New Construction, Added Facilities, and Alterations
In the proposed rule, the Board identified three types of
pedestrian facilities subject to PROWAG: newly constructed facilities,
added facilities, and altered facilities. The NPRM specified that newly
constructed and added facilities were subject to full compliance with
PROWAG (NPRM R201.1; NPRM R202.2), while alterations were expected to
comply to the maximum extent practicable where existing physical
constraints make it impracticable to fully comply (NPRM R202.3.1).
These three classifications of facilities were carried over from
the accessibility guidelines for buildings and sites, where they have
been used successfully for many years. 69 FR 44083, 36 CFR part 1191
(July 23, 2004) and 56 FR 35408 (July 26, 1991). However, in response
to the PROWAG NPRM, the Board received comments from state DOTs and
others indicating confusion as to how to distinguish between new,
added, and altered facilities in the public right-of-way. In addition,
since publication of the NPRM, the Board has regularly received
technical assistance inquiries from individuals seeking to determine
whether a particular public right-of-way construction project must
fully comply with requirements for new construction or is subject to
considerations for existing physical constraints for alterations.
The Board concurs that the distinctions between new construction,
added facilities, and alterations, which are readily apparent in
construction of a building, are not as clear in the public right-of-
way. For example, under the language of the NPRM, a jurisdiction might
consider the extension of a sidewalk an alteration of an existing
pedestrian facility or alternatively an addition of a new pedestrian
facility. The level of compliance with accessibility requirements might
hinge on that characterization.
In determining how to resolve this confusion in the final rule, the
Board considered comments from state DOTs, local government entities,
an association of engineering companies, and the American Association
of State Highway and Transportation Officials (AASHTO) indicating that
any construction in existing public rights-of-way should be subject to
considerations for existing physical constraints, highlighting that
existing storm and sanitary sewer infrastructure, utilities, and
adjacent developed facilities may make full compliance with the
guidelines impossible.
In the final rule, the Board has defined ``alteration'' as ``a
change to or an addition of a pedestrian facility in an existing
developed public right-of-way that affects or could affect pedestrian
access, circulation, or usability'' (R104.3). In so defining
``alteration,'' the Board has revised the requirements for added
facilities, now allowing them to comply to the maximum extent feasible
where existing physical constraints make compliance with applicable
requirements technically infeasible (R202.3). The Board has also
provided a definition for ``developed'' as ``[c]ontaining buildings,
pedestrian facilities, roadways, utilities, or elements'' (R104.3).
Taken together, the Board expects full compliance with the requirements
for new construction on undeveloped land (i.e., greenfield), while any
construction undertaken in an existing developed right-of-way is
expected to comply to the maximum extent feasible where existing
physical constraints make compliance with applicable requirements
technically infeasible. The Board has concluded that these expectations
for compliance are reasonable in light of existing infrastructure in
developed rights-of-way, and the opportunity for full compliance in a
new public right-of-way built on undeveloped land.
Alterations vs. Maintenance
In response to the NPRM, the Board received several comments
seeking clarity on what types of roadwork would constitute an
``alteration'' within the meaning of the rule. The proposed guidelines
defined ``alteration'' as ``[A] change to a facility in the public
right-of-way that affects or could affect pedestrian access,
circulation, or use. Alterations include, but are not limited to,
resurfacing, rehabilitation, reconstruction, historic restoration, or
changes or rearrangement of structural

[[Page 53608]]

parts or elements of a facility'' (NPRM R105.5).
One state department of transportation, four local government
entities, a national parks and recreation organization, and an
individual engineer commenter requested further clarification on the
definition of ``alteration,'' or additional examples.
Much of the concern centered on the Board's inclusion of the
example of ``resurfacing.'' Five states and AASHTO, seven local
government entities, various organizations associated with the
construction industry, an independent Federal agency, and an
engineering company expressed concern that ``resurfacing'' was included
in the definition of alteration and sought additional information on
the definition of ``resurfacing.'' These commenters were concerned that
``maintenance'' operations and ``pavement preservation'' would trigger
an obligation to comply with these guidelines.
Since the publication of the NPRM, this issue has largely been
resolved. In 2013, DOJ and USDOT issued joint guidance clarifying when
resurfacing is considered an ``alteration'' for purposes of ADA Title
II compliance and specifying the types of treatments that are
considered maintenance. See DOJ and USDOT, Department of Justice/
Department of Transportation Joint Technical Assistance on Title II of
the Americans with Disabilities Act Requirements to Provide Curb Ramps
when Streets, Roads, or Highways are Altered through Resurfacing (July
8, 2013), available at <a href="https://www.ada.gov/doj-fhwa-ta.htm">https://www.ada.gov/doj-fhwa-ta.htm</a>; see also Q
& A Supplement to the 2013 DOJ/DOT Joint Technical Assistance on the
Title II of the ADA Requirements To Provide Curb Ramps when Streets,
Roads, or Highways are Altered through Resurfacing, available at
<a href="https://ada.gov/doj-fhwa-ta-supplement-2015.html">https://ada.gov/doj-fhwa-ta-supplement-2015.html</a>.
The Board's revised definition of ``alteration'' in the final rule
omits the examples of specific roadway treatments, deferring to USDOT's
and DOJ's joint technical assistance as to which treatments and types
of construction are considered alterations for purposes of enforcement
of their standards. However, the Board here clarifies that where a
roadway treatment is determined to be an alteration, compliance with
PROWAG is triggered and the technical requirements apply, regardless of
the ``scope of the [alteration] project.'' The elimination of the
``scope of the project'' language from the final rule is discussed
below.
Scope of the Project
The proposed guidelines indicated that where existing elements are
altered, each altered facility ``within the scope of the project'' must
be made to comply with the guidelines (NPRM R202.3). One state and
several local government entities requested clarification on the
intended meaning of ``scope of the project,'' and disability rights
advocacy organizations expressed concern that regulated entities may
define the scope of the project to avoid compliance. The Board has thus
removed this language from the final rule.
Under the final rule, altered portions of existing pedestrian
facilities are expected to comply with the requirements (R201.1). This
means that the portion of a pedestrian facility that is altered is
expected to comply with all applicable technical requirements. Where
existing physical constraints make compliance with applicable
requirements technically infeasible, compliance with these requirements
is required to the maximum extent feasible (R202.3). This is the same
approach that is employed in the 2004 ADA and ABA Accessibility
Guidelines for buildings and sites.
Existing Physical Constraints
Section R202.3.1 of the NPRM stated that where existing physical
constraints make full compliance with these guidelines
``impracticable,'' alterations must comply with the technical
specifications of these guidelines to the ``extent practicable.'' The
proposed section R202.3.1 provided examples of existing physical
constraints, including ``underlying terrain, right-of-way availability,
underground structures, adjacent developed facilities, drainage, or the
presence of a notable natural or historic feature.''
Numerous commenters expressed varying concerns about section
R202.3.1 of the proposed rule. One state public utility commission,
four local government entities, and an engineering firm requested that
the Access Board provide further explanation of the meaning of ``extent
practicable'' and one state DOT recommended replacing the term with
``maximum extent practicable.'' A disability rights advocacy
organization requested a requirement for full compliance with the
guidelines unless ``technically infeasible.'' Three disability rights
advocacy organizations and two individuals expressed concern that the
language describing existing physical constraints was too broad or
might be used as an excuse to deviate from the technical requirements.
Three state DOTs and one local government entity requested
clarification on ``right-of-way availability'' as an existing physical
constraint and wondered whether they would be expected to obtain
additional right-of-way.
In the final rule, the Board has replaced the term
``impracticable'' with ``technically infeasible'' and ``extent
practicable'' with ``maximum extent feasible,'' which are the terms
used in the 2004 ADA and ABA Accessibility Guidelines. See e.g., 36 CFR
part 1191, App. B, 202.3 Exception 2. The Board acknowledges that
``impracticable'' and ``extent practicable'' were intended to be
interpreted in the same way as ``technically infeasible'' and ``maximum
extent feasible,'' and the use of different terms was creating
confusion. The expectation is that in the context of alterations,
entities are responsible for compliance with applicable technical
requirements to the maximum extent feasible where existing physical
constraints make compliance with those requirements technically
infeasible.
The Board also eliminated ``right-of-way availability'' as an
example of an existing physical constraint. The Board acknowledges that
in many cases regulated entities have authority to acquire additional
right-of-way, which made it a confusing example of an existing physical
constraint. DOJ and USDOT may provide further information as to any
expectations that entities acquire additional right-of-way to meet
accessibility requirements.
A disability rights advocacy organization requested that the Board
apply the ``primary function'' and ``path of travel'' requirements from
the 2004 ADA and ABA Accessibility Guidelines. 36 CFR part 1191, App. B
202.4. In addition, a local chapter of a national public works
association, seven local government entities, and a disability rights
advocacy organization would like the final rule to contain a 20%
threshold for determining whether the cost of providing accessibility
features is disproportionate to the overall cost of the alteration.\4\
The Board points

[[Page 53609]]

commenters to the detailed explanation in the preamble to the NPRM as
to why the primary function area and path of travel concepts are not
appropriate for pedestrian rights-of-way. 76 FR 44664, 44672 (July 26,
2011).
---------------------------------------------------------------------------

\4\ Section 202.4 of the 2004 ADA and ABA Guidelines states that
an alteration that affects or could affect the usability of or
access to an area containing a primary function shall be made so as
to ensure that, to the maximum extent feasible, the path of travel
to the altered area, including the rest rooms, telephones, and
drinking fountains serving the altered area, are readily accessible
to and usable by individuals with disabilities, unless such
alterations are disproportionate to the overall alterations in terms
of cost and scope as determined under criteria established by the
Attorney General. In existing transportation facilities, an area of
primary function shall be as defined under regulations published by
the Secretary of the Department of Transportation or the Attorney
General. 36 CFR part 1191, App. B, Sec. 202.4.
DOJ's 2010 ADA Standards state in part that alterations made to
provide an accessible path of travel to the altered area will be
deemed disproportionate to the overall alteration when the cost
exceeds 20% of the cost of the alteration to the primary function
area. 28 CFR 35.151(b)(4)(iii)(A).
---------------------------------------------------------------------------

Existing Facilities
Several commenters expressed concern about their obligations under
Title II of the ADA and Section 504 of the Rehabilitation Act for
existing facilities that are not altered. See 28 CFR 35.150 (containing
DOJ accessibility requirements for state and local governments'
existing facilities); see also 49 CFR 27.11(c) (requiring recipients of
USDOT Federal financial assistance to undertake accessibility
compliance planning). When DOJ and USDOT conduct rulemaking to include
accessibility standards for pedestrian facilities in the public right-
of-way in regulations implementing Title II of the ADA and Section 504
of the Rehabilitation Act, they will address the application of their
accessibility standards to existing facilities that are not altered.
Comments concerning existing facilities that are not altered should be
directed to DOJ and USDOT at that time. These guidelines address only
new construction and alterations of existing facilities, and are
voluntary until adopted by other agencies, with or without
modifications, as enforceable standards.
2. Accessible Pedestrian Signals
Scoping for Accessible Pedestrian Signals
Accessible Pedestrian Signals are devices that communicate
information about pedestrian signal timing in non-visual formats such
as audible tones, speech messages, and/or vibrating surfaces (R104.3).
In the NPRM, the Board proposed that all new and altered pedestrian
signals conform to the requirements for accessible pedestrian signals
in sections 4E.08 through 4E.13 of the MUTCD (NPRM R209.1).
Several entities submitted comments opposing universal installation
of accessible pedestrian signals. Eight state and three local
government entities advocated for their jurisdictions' more limited
practices with respect to determining where accessible pedestrian
signals should be installed: six states and one local government
installed accessible signals upon citizen request or as part of planned
upgrades; one state and one local government consulted with mobility
specialists or disability advocacy groups before installing an
accessible pedestrian signal in a given location; one state only
installed accessible pedestrian signals where a substantial population
of blind individuals is known to travel, such as near a school for
students who are blind; one city installed accessible pedestrian
signals within a quarter mile of light rail stations, and elsewhere
upon request.
Two local governments, while not stating a current practice,
indicated that they would like to work with organizations representing
the ``low vision community'' to determine where accessible signals
should be installed. Fifteen other local government commenters and six
individual commenters from the engineering industry, and an association
of city transportation engineers preferred that the guidelines leave
the decision as to whether to install accessible pedestrian signals to
``engineering judgment,'' as specified in the MUTCD. A national
organization of transportation officials expressed that the guidelines
should require accessible pedestrian signals only where there is a
demonstrated need. Three states and two cities indicated that they
already provide accessible pedestrian signals whenever possible when
new pedestrian signals are installed, or existing signals are altered.
This requirement for the installation of accessible pedestrian
signals was also one of the proposed provisions of PROWAG that
generated the most public support. More than 115 commenters, including
disability rights organizations, individuals with disabilities, and
mobility specialists, supported the proposed requirement.
Upon careful consideration of the comments, as well as the costs
and benefits of this requirement, the Board has decided to retain in
the final rule scoping specifying that accessible pedestrian signals be
installed wherever new pedestrian signals are provided, and whenever
pedestrian signals are altered. Accessible pedestrian signals are
crucial to the independent movement of individuals who are blind or
have low vision throughout public rights-of-way.\5\ Over time this
requirement will make accessible pedestrian signals ubiquitous
throughout the United States, allowing people who are blind or have low
vision to undertake independent pedestrian travel to any destination
where pedestrian facilities exist. Anything less than a universal
requirement is unlikely to achieve a uniform nationwide result.
---------------------------------------------------------------------------

\5\ The Access Board acknowledges a historical difference of
opinion between advocacy organizations for people who are blind as
to the need for accessible pedestrian signals. The Board further
notes that this difference of opinion has diminished over time. In
the NPRM, the Access Board observed that in response to the 2002
draft guidelines, two thirds of commenters identifying themselves as
being blind or having low vision supported installation of
accessible pedestrian signals. 76 FR at 44676. In response to the
NPRM, commenters indicating a vision disability overwhelmingly
expressed support for accessible pedestrian signals. In 2001, the
National Federation of the Blind (NFB) opposed universal
installation of accessible pedestrian signals on the grounds that
they were unnecessary in most circumstances, and that the sounds
emitted by accessible signals interfered with detection of vehicles
through audible cues. See Public Rights of Way Advisory Committee,
Building a True Community, Minority Report. 153 (January 10, 2001).
However, even at that time, the NFB noted changing features of
public rights-of-way that complicated the traditional reliance on
traffic noises for navigation, including quieter cars, complex
signal intersections, wide streets, and the use of pedestrian
actuated signals. Id. In response to the NPRM, the NFB advised that
it now supports the use of accessible pedestrian signals when
installed in consultation with the blind community. See NFB, Public
Comment, ATBCB-2011-0004-0251, available at <a href="http://www.regulations.gov">www.regulations.gov</a>. The
Access Board notes that accessible pedestrian signals must be
equally available to all individuals, whether or not they are
affiliated with or known to any particular advocacy organization or
civic group. The Board observes that the American Council of the
Blind strongly supports the installation of accessible pedestrian
signals wherever pedestrian signals exist. See American Council of
the Blind, Public Comment, ATBCB-2011-0004-0341, available at
<a href="http://www.regulations.gov">www.regulations.gov</a>.
---------------------------------------------------------------------------

The Board has assessed the incremental costs associated with the
installation of accessible pedestrian signals. FRIA at 46. The Board
acknowledges that the requirement for universal installation of APS is
the single most costly provision of PROWAG. Id. However, it is the
provision expected to provide the greatest advance in equity for
persons who are blind or have low vision, as the use of accessible
pedestrian signals is one of the accessibility features of public
rights-of-way that has not been uniformly adopted across the United
States. The Board has assessed the costs and benefits of this
requirement and is confident that the combination of the monetizable
and unmonetizable benefits greatly outweigh the costs. See FRIA at 129.
Specific changes to language of the provision are addressed in the
section-by-section analysis below.
Alterations of Accessible Pedestrian Signals
In the NPRM, the Board specified alteration of the signal
controller and software, and replacement of a signal head as
alterations that would trigger

[[Page 53610]]

installation of an accessible pedestrian signal consistent with the
technical requirements (NPRM R209.2). The Access Board received
numerous comments disagreeing with the proposed provision. Ten state
departments of transportation and 28 local government entities
responded, in addition to five professional organizations. These
commenters indicated that neither altering a signal controller and
software, nor replacing a signal head offers an opportunity to convert
an existing pedestrian signal to an accessible pedestrian signal. Some
of these commenters were concerned that under the proposed language, a
minor modification or repair could result in an extensive project to
upgrade an entire intersection. Others worried that they would have to
forgo regular software upgrades provided by signal manufactures unless
they intended to convert existing equipment to accessible pedestrian
signals.
Four disability rights advocacy organizations, one pedestrian
advocacy organization, and four individuals supported the proposed
specifications regarding specific actions that should trigger
installation of accessible pedestrian signals, and requested that the
Access Board add other triggering actions in the final rule. The
National Committee on Uniform Traffic Control Devices (NCUTCD)
recommended requiring installation of accessible pedestrian signals
when traffic signal equipment modification or timing changes affect the
ability of a pedestrian with a disability to be aware of the change.
See NCUTCD, Public Comment, ATBCB-2011-0004-0477, available at
<a href="http://www.regulations.gov">www.regulations.gov</a>. NCUTCD cited reduction of walk time or pedestrian
clearance, and installation of modified turn phasing as examples of
such changes that should warrant conversion to an accessible pedestrian
signal. Id.
The Access Board proposed the requirements of section R209.2 to
ensure that accessible pedestrian signals would be installed during
alteration projects. Upon consideration of public comments, the Access
Board acknowledges the diverse nature of alterations that affect
pedestrian signals, and declines in the final guidelines to specify
specific actions that trigger the requirement to install accessible
pedestrian signals. Rather, pedestrian signals are subject to the same
alteration requirements as other pedestrian facilities. The entity
making the alteration will assess, according to requirements in the
guidelines as adopted by USDOT and DOJ, whether installation of an
accessible pedestrian signal is required. The Board notes that USDOT
and DOJ may provide further specifics as to alterations triggering
installation of APS in their rulemakings adopting these guidelines.
3. Pedestrian Crossing Treatments at Roundabouts
In the NPRM, the Board proposed a requirement for installation of
an accessible pedestrian actuated signal at multilane pedestrian street
crossings \6\ at roundabouts (NPRM Section R306.3.2). In an advisory
issued with the proposed rule, the Board indicated that a Pedestrian
Hybrid Beacon (PHB) could be used in lieu of a standard pedestrian
signal.\7\
---------------------------------------------------------------------------

\6\ In the final rule, the term ``crosswalk'' has been
substituted for ``pedestrian street crossing'' to use terminology
consistent with the MUTCD.
\7\ Pedestrian Hybrid Beacons (PHBs) are a special type of
hybrid beacon used to war and control traffic at an unsignalized
location to assist pedestrians in crossing a street at a marked
crosswalk (R104.3).
---------------------------------------------------------------------------

Roundabouts present unique challenges for pedestrians who are
blind. At roundabouts, entering and exiting vehicles yield, but do not
stop. The continuous traffic flow removes many of the audible cues that
pedestrians who are blind use to navigate pedestrian street crossings.
Without signals that periodically stop vehicles, pedestrians must
assess when there is a sufficient gap in traffic to cross. Sighted
pedestrians visually assess the distance and speed of on-coming cars to
decide when they should cross. However, pedestrians who are blind or
have low vision are not able to identify breaks in on-coming traffic by
sight and lack the audible cues that might otherwise substitute for
visible information.
The Board included the requirement for an accessible pedestrian
signal or an accessible PHB at multilane pedestrian street crossings at
roundabouts to make those complex pedestrian street crossings
accessible to people who are blind or have low vision. At multilane
roundabouts, pedestrians who are blind or have low vision face
additional challenges. While a vehicle in the lane nearest the curb
might stop for a pedestrian who is blind, the stopped vehicle may mask
the audible cues of a car in the next lane that does not yield. See
Transportation Research Board, NCHRP Report 674: Crossing Solutions at
Roundabouts and Channelized Turn Lanes for Pedestrians with Vision
Disabilities, 6 (2011), available at <a href="https://onlinepubs.trb.org/onlinepubs/nchrp/nchrp_rpt_674.pdf">https://onlinepubs.trb.org/onlinepubs/nchrp/nchrp_rpt_674.pdf</a>. <a href="https://onlinepubs.trb.org/onlinepubs/nchrp/nchrp_rpt_674.pdf">https://onlinepubs.trb.org/onlinepubs/nchrp/nchrp_rpt_674.pdf</a>. <a href="https://onlinepubs.trb.org/onlinepubs/nchrp/nchrp_rpt_674.pdf">https://onlinepubs.trb.org/onlinepubs/nchrp/nchrp_rpt_674.pdf</a>. As a result, pedestrians who are
blind take substantially more time to locate a crossing opportunity and
make more errors in assessing such opportunities than sighted
pedestrians. Id. To address these challenges, the proposed rule
specified a requirement for a pedestrian actuated signal to be provided
at all multilane pedestrian street crossings at roundabouts.
The Access Board received numerous comments on this proposed
provision. Five state departments of transportation, eleven local
government entities, two professional associations for engineers, three
engineering companies, and two individuals opposed a universal
requirement for the proposed pedestrian treatments at multilane
roundabouts. These commenters opined that engineering judgement and/or
warrant criteria should be used on a case-by-case basis to determine
whether a pedestrian treatment is appropriate at a given roundabout
crossing. Two states, seven local government entities, a local public
works association, and AASHTO opposed the requirement on the grounds
that pedestrian signals and PHBs will create a false sense of safety
for pedestrians as drivers who would not be expecting signals at
roundabouts would fail to yield to pedestrians.
One state, five local government entities, and a professional
association related to the construction industry expressed concern that
the addition of pedestrian signals or PHBs would defeat the purpose of
using roundabouts instead of traditional intersections. Specifically,
these commenters noted that roundabouts keep traffic continuously
flowing, reduce air pollution from idling vehicles, reduce accidents,
and may cost less to build as compared to fully signalized
intersections. Three local government entities expressed concern that
PHBs would be confusing to motorists in parts of the country where, at
the time the comments were submitted, they were not frequently used.
Three state departments of transportation, eight local government
entities, a transportation engineering firm, and a public works
professional association found the proposed provision too restrictive
as written and urged the Access Board to consider other pedestrian
crossing treatments such as raised crosswalks and rapid rectangular
flashing beacons (RRFBs).
Many other commenters supported the proposed requirement for
signals or PHBs at multilane pedestrian street crossings at
roundabouts. Two municipalities, seven disability rights advocacy
organizations, two pedestrian

[[Page 53611]]

advocacy organizations, one engineering firm, and 99 individuals,
including persons with disabilities, mobility specialists, and others,
supported the proposed provision. Three disability rights organizations
requested that the final rule require signals or PHBs at all
roundabouts, including single lane pedestrian crossings. Two
researchers who generally supported the proposed rule also encouraged
further study on other acceptable treatments, such as raised crosswalks
and RRFBs.
The Access Board considered all of the comments submitted regarding
pedestrian treatments at roundabouts. In addition to the comments, the
Board considered relevant research on alternate pedestrian treatments
such as raised crosswalks and RRFBs. Raised crosswalks are marked
pedestrian crossings on elevated speed tables that require a driver to
slow down to cross the speed table. Because drivers must slow their
vehicles to traverse the raised crossing, they are more likely to yield
to pedestrians waiting to cross. RRFBs are flashing yellow rectangular
lights that are activated by the pedestrian and supplement a pedestrian
warning sign. The flashing beacons draw a driver's attention to the
pedestrian in the crosswalk, increasing the likelihood that the driver
will yield to the pedestrian. Unlike the PHB, neither the raised
crosswalk nor the RRFB provide the driver with a ``stop'' signal.
Rather, they bring increased awareness to the presence of a pedestrian.
National Cooperative Highway Research Program Project 674 assessed
the use of PHBs and raised crosswalks at a multilane roundabout by
blind pedestrians in Golden, Colorado. See Transportation Research
Board, NCHRP Report 674: Crossing Solutions at Roundabouts and
Channelized Turn Lanes for Pedestrians with Vision Disabilities 6
(2011), available at <a href="https://onlinepubs.trb.org/onlinepubs/nchrp/nchrp_rpt_674.pdf">https://onlinepubs.trb.org/onlinepubs/nchrp/nchrp_rpt_674.pdf</a>. Researchers found positive effects on decision
making regarding crossings by blind pedestrians using both types of
treatments. Id.
A study undertaken by Western Michigan University confirmed the
effectiveness of PHBs at multilane roundabouts and showed that RRFBs
could be effective in some instances. See Dept. of Blindness and Low
Vision Studies, Western Michigan University et al., Road Commission for
Oakland County PHB and RRFB Study: Final Report, 5-7 (October 5, 2011)
available at <a href="https://www.rcocweb.org/DocumentCenter/Home/View/99">https://www.rcocweb.org/DocumentCenter/Home/View/99</a>
(indicating that RRFBs installed at two-lane roundabout entries had a
positive impact on decision making by blind pedestrians as to assessing
when to cross; however, RRFBs were less effective at two-lane
roundabout exits and three-lane roundabouts).
A Federal Highway Administration (FHWA) study found further support
for the conclusion that under certain circumstances, RRFBs can be
effective at providing accessibility for pedestrian crossings at
multilane roundabouts. FHWA, Pub. No. FHWA-SA-15-69, Evaluation of
Rectangular Rapid-Flashing Beacons (RRFB) at Multilane Roundabouts, 34
(2015, Updated 2020) available at <a href="https://safety.fhwa.dot.gov/intersection/roundabouts/fhwasa15069.pdf">https://safety.fhwa.dot.gov/intersection/roundabouts/fhwasa15069.pdf</a>.
The Board also reviewed Transportation Research Board-sponsored
research on crossing solutions at roundabouts and channelized turn
lanes for pedestrians who are blind or have low vision. See
Transportation Research Board, NCHRP 3-78b: Guidelines for the
Application of Crossing Solutions at Roundabouts and Channelized Turn
Lanes for Pedestrians with Vision Disabilities, Final Project Report
(2016) available at <a href="https://itre.ncsu.edu/wp-content/uploads/sites/2/2017/04/NCHRP-03-78b_Final-Guidelines.pdf">https://itre.ncsu.edu/wp-content/uploads/sites/2/2017/04/NCHRP-03-78b_Final-Guidelines.pdf</a>; see also Transportation
Research Board, NCHRP 834: Crossing Solutions at Roundabouts and
Channelized Turn Lanes for Pedestrians with Vision Disabilities, A
Guidebook (2017) available at <a href="https://www.trb.org/Main/Blurbs/175586.aspx">https://www.trb.org/Main/Blurbs/175586.aspx</a>.
Multilane roundabouts remain highly complex crossings for
pedestrians who are blind or have low vision. In light of the lack of
clear audible cues at these crossings and the additional challenges
posed by the geometry of multilane crossings in these locations, in the
final rule the Board has retained the requirement for an enhanced
crosswalk treatment at each multilane pedestrian crossing at
roundabouts. However, based on commenter feedback and the Board's
review of available research, the final rule includes three treatment
options for crosswalks at roundabouts, in addition to standard
accessible pedestrian signals: PHBs, raised crosswalks, and RRFBs. All
three treatments demonstrated positive effects over untreated crossings
in the research studies described above. While the three treatments did
not perform identically in each research study, the Board finds that
each treatment was effective in certain scenarios. The final rule
requires that, like other accessible pedestrian signals, all new and
altered PHBs provide audible and vibrotactile information in addition
to visible cues, and all new and altered RRFBs provide audible
information communicating that the warning lights are flashing.
The Board notes that research on single lane roundabouts indicates
that certain single lane roundabouts pose challenges to pedestrians
with disabilities attempting to cross. See David A. Guth et. al., Blind
and Sighted Pedestrians' Road Crossing Judgments at a Single-Lane
Roundabout, 55 Human Factors, 632 (June 2013). However, it is not clear
from the limited available research, whether all single lane
roundabouts, or only those with certain characteristics, pose barriers
to safe crossing for pedestrians who are blind such that enhanced
crossing treatments are required. USDOT plans to undertake additional
research to study the conditions under which single lane crossings at
roundabouts present challenges for pedestrians who are blind.
4. Leveling Out of Intersections Extended Through Pedestrian Crossings
In the NPRM, the Board proposed to require that the grade of
pedestrian access routes in crosswalks not exceed 5% (NPRM R302.5.1).
The proposed rule also limited the cross slope of pedestrian access
routes to 2% (NPRM R302.6), and the cross slope of pedestrian access
routes contained within crosswalks at approaches without yield or stop
control to 5% (NPRM R302.6.1). The effect of these provisions was to
require that in new construction, the leveling out of streets at
intersections be extended to crosswalks. It is common practice to level
out streets at intersections so that the slope of a street does not
present a significant cross slope to the intersecting roadway. AASHTO
recommends that at intersections, grades in excess of three percent
should be avoided. See AASHTO, Policy on Geometric Design of Highways
and Streets at 9-34.
The cross slope of a crosswalk is the same as the grade of the
roadway that runs through it. Where traffic is required to slow down at
a crosswalk because there is a device such as a stop or yield sign, the
grade of the road (and the cross slope of the crosswalk) can be flatter
because vehicles move more slowly through the crosswalk. However, where
traffic will flow across a crosswalk without slowing or stopping, such
as during a green light or at an intersection without any traffic
control device, abrupt changes in the grade of the road should be
minimized to prevent a vehicle from jolting or bottoming out on the
grade change in hilly areas.
The proposed rule specified cross slope of pedestrian street
crossing in

[[Page 53612]]

new construction and alterations according to the type of traffic
control provided at the intersection. At NPRM section R302.6.1, the
proposed guidelines called for a maximum 5% cross slope for pedestrian
street crossings ``without yield or stop control.'' In an advisory at
R302.6.1, the Board explained that crossings ``without yield or stop
control'' refer to those crossings that do not have a stop or yield
sign, or alternately have a traffic signal that is ``designed for the
green phase.'' The Board further clarified that crossings ``without
yield or stop control'' are those intersections where ``vehicles can
proceed through the intersection without slowing or stopping.''
Proposed provision R302.6 provided for a 1:48 maximum cross slope for
other pedestrian street crossings at intersections, which would include
those with a stop or yield sign, or other type of traffic control
device requiring a full stop or yield.
In response to the NPRM, ten state entities, six local government
entities, eight individuals from the engineering and planning industry,
and one engineering firm indicated that the Board should use clearer
language to distinguish between the types of crossings. Thus, in the
final rule, the Board has separated the requirements according to the
type of traffic control at the crosswalk: crosswalk with yield or stop
control devices (R302.5.2.1); crosswalk at an uncontrolled approach
(R302.5.2.2); crosswalk with traffic control signal or PHB
(R302.5.2.3); and midblock and roundabout crosswalks (R302.5.2.4).
Many commenters expressed concern about the application of the
cross slope provisions in alterations. Three state departments of
transportation and one local government entity were concerned that
changes in signalization alone, without any construction to the roadway
itself, would trigger a requirement to comply with the cross slope
requirements at pedestrian crossings. Two states, one association
representing state departments of transportation, one local government,
and one engineer pointed out that signalization of intersections change
over time and questioned whether the requirement should be tied to a
fluid marker. The local government and engineer commenters noted that
while 5% maximum cross slope might be acceptable at the time of new
construction, once more houses and facilities are built around an
intersection warranting a stop sign, the requirement would shift to 2%.
Commenters noted that a 2% maximum cross slope is less easily achieved
in an alteration than in new construction. The Board notes that an
alteration to a traffic control device would not necessarily trigger a
requirement to comply with cross slope requirements at that crosswalk
if the crosswalk is not being altered.
One state expressed concern that resurfacing roadways would trigger
a requirement to regrade intersections. A local government indicated
that retrofitting cross slopes of existing crossings would have more
than minimal impacts, and another local government requested that
existing crossings be entirely exempted from the requirement. Four
organizations associated with the construction and public works
industries expressed concern about the cost of compliance for existing
intersections. One state was not sure that it could meet the cross
slope requirements given existing infrastructure. Seven local
government entities expressed that altering intersections to comply
with cross slope requirements would be ``unreasonable,''
``burdensome,'' ``impractical,'' ``difficult,'' or ``not feasible
without major reconstruction.''
The Board acknowledges that full compliance with the cross slope
requirements for crosswalks, which is expected in new construction, may
be challenging in some alterations due to existing physical
constraints. In alterations, compliance with R302.5.2 is required to
the maximum extent feasible where existing physical constraints, as
discussed in R202.3, make compliance technically infeasible. If
existing curbs, gutters, sidewalks, and utilities are not part of the
facility being altered, they are generally considered ``adjacent
developed facilities'' which are a type of existing physical constraint
under R202.3 that could constrain the technical feasibility of
compliance with R302.5.2. Thus, if a public entity is not otherwise
altering the adjacent developed facilities as part of its crosswalk
alteration and those existing physical constraints would make
compliance with R302.5.2 technically infeasible, then compliance is
required to the maximum extent feasible without needing to alter the
adjacent developed facilities.
The Board notes, however, that when alterations are made to
crosswalks, R203.6.2 requires curb ramps or blended transitions to be
provided on both ends of the crosswalk where a pedestrian access route
crosses a curb, thus making such curb ramps or blended transitions part
of the crosswalk being altered. Accordingly, existing curb ramps and
blended transitions are not considered existing physical constraints
under R202.3. Similarly, existing curbs within the crosswalk where
there is no curb ramp or blended transition, are not considered
existing physical constraints under R202.3.
The Board has assessed the costs of compliance with the crosswalk
cross slope requirements in the FRIA. See FRIA at 114. In light of the
existing physical constraints provision at R202.3, the application of
which to R302.5.2 is described above, as well as the large number of
jurisdictions whose design guidance for crosswalk cross slope already
meets the PROWAG technical requirements, the Board believes commenters'
concerns that this requirement is ``unreasonable,'' ``burdensome,'' or
``not feasible without major reconstruction'' to be based on a
misunderstanding of the requirements. Further, the Board regards the
accessibility of crosswalks, where individuals with disabilities are
present in vehicular ways, to be critical in ensuring equitable use of
pedestrian facilities.
Several state and local jurisdictions objected to the technical
requirements themselves. One state department of transportation
indicated that a 3% maximum cross slope is appropriate for pedestrian
crossings with stop and yield control, and 6% maximum is appropriate
for other crossings. Two local government entities recommended 5%
maximum cross slope for all crossings. Another state agreed with a
grade limitation on side streets, but not through streets, which would
eliminate restrictions on cross slope of pedestrian crossings spanning
through streets. Another state DOT commented that regrading pedestrian
crossings is costly and problematic for vehicles, and preferred that
tabling not be required. Three local government entities, a public
works association, and an association of engineering professionals
expressed concern that the cross slope requirements will create a
``roller coaster'' street profile or ``jolt'' vehicles as they pass
over pedestrian crossings. The Board disagrees that the technical
requirements, when properly implemented, will result in the engineering
concerns expressed by some commenters. Further, the Board observes that
if an entity can demonstrate that the unique characteristics of the
underlying terrain of a specific newly designed intersection preclude
full compliance with the cross slope requirements, under DOJ's Title II
regulations under the ADA, full compliance with the cross slope
requirements may not be required. See 28 CFR 35.151. In alterations,
where compliance is technically infeasible,

[[Page 53613]]

alterations must comply with requirements to the maximum extent
feasible (R202.3). In addition, the Board has provided an exception for
the grade of crosswalks where superelevation exceeds 5% (R302.4.3).
Other commenters supported the proposed requirements. A
professional organization of mobility specialists for people who are
blind requested that the Board encourage tabling wherever feasible. A
pedestrian advocacy organization asserted that 2% should be the maximum
cross slope for all pedestrian crossings. A non-profit accessible
design organization also indicated that 2% maximum cross slope should
be the standard for all pedestrian crossings, noting that a 5% cross
slope is too steep for many manual wheelchair users.
After careful review of the comments, the Board has retained the
substantive cross slope requirements for crosswalks as proposed. A
cross slope of 1:48 (2.1%) is well established in accessibility
guidelines as the appropriate maneuverable cross slope for most
individuals in manual wheelchairs and persons with balance impairments.
See, e.g., Uniform Federal Accessibility Standards (UFAS), 49 FR 31528
(Aug. 7, 1984) and the 2004 ABA and ADA Accessibility Guidelines, 36
CFR part 1191.
The Board notes that if the 1:48 cross slope ratio were expressed
as a percentage to the nearest hundredth, the relevant percentage would
be 2.08%. This percentage has been expressed as 2.1% in the regulatory
text due to the limitations of current digital measuring tools commonly
used in sidewalk construction, which would round 2.08% to 2.1%.
In these guidelines, the Board balances accessibility with
engineering considerations. The Board has assessed the costs of
compliance with the crosswalk cross slope requirements in the FRIA. See
FRIA at 114.
5. MUTCD
The proposed guidelines incorporated by reference portions of the
2009 edition of the USDOT Federal Highway Administration's (FHWA's)
Manual on Uniform Traffic Control Devices (MUTCD), which is the
standard for traffic control devices used throughout the United States.
The incorporated sections included several definitions and technical
requirements for alternate pedestrian access routes and accessible
pedestrian signals and push buttons (NPRM R105.2; R205; R209.1).
Several disability rights advocacy organizations objected to this
approach. Two organizations objected to the Access Board's use of the
MUTCD in lieu of creating its own technical specifications for these
regulated features, while others did not oppose the use of the MUTCD
standard but felt that the relevant text of the MUTCD should be
reproduced within the guidelines or in an appendix. A variety of
commenters urged the Access Board to include the full text of MUTCD
definitions for specified terms incorporated by reference.
The National Technology Transfer and Advancement Act requires
Federal agencies to use technical standards developed by voluntary
consensus standards organizations to carry out policy objectives. 15
U.S.C. 3701 et seq. Wherever practical and appropriate, government
adoption of voluntary standards reduces the burden of compliance with
Federal regulations on regulated entities, and also reduces costs to
the government. See generally, Office of Management and Budget (OMB),
Circular A-119. The MUTCD was developed as a voluntary consensus
standard for traffic control devices and was subsequently adopted by
the FHWA as a national standard. See FHWA, Evolution of MUTCD,
available at <a href="https://mutcd.fhwa.dot.gov/kno-history.htm">https://mutcd.fhwa.dot.gov/kno-history.htm</a>. States must
adopt the content of the MUTCD within two years of issuance. 23 CFR
part 655, subpart F.
Consistent with its statutory obligations and OMB guidance to
reduce the burden on regulated entities, the Access Board uses existing
technical standards where possible to meet its policy objectives.
Accordingly, the Board proposed incorporation by reference of the MUTCD
sections. However, upon review of the comments, and after over a decade
of providing technical assistance on the application of those
provisions, the Board concurs with commenters that incorporating MUTCD
provisions by reference does not provide sufficient clarity for a
mandatory standard.
Specifically, the Board notes that the MUTCD contains several types
of provisions, some of which are mandatory standards and some of which
are guidance, options, and supporting explanations. The Board proposed
to incorporate by reference the standards, but further indicated that
the guidance, options, and support statements must be used to interpret
the standards. The NPRM further stated that if there were any
differences between the MUTCD and the proposed rule, the proposed rule
applied. Upon review, and in light of the comments, it is clear that
this approach does not provide sufficient specificity to achieve
uniform nationwide accessibility. In addition, application of the MUTCD
relies heavily on engineering judgement, which further invites the
possibility of subjective determinations of the need for specific
accessibility features.
In the final rule, the Board has addressed this confusion by
eliminating all references to the MUTCD and including the specific
definitions and requirements directly in the rule text. The technical
provisions and the definitions included in the rule text adhere closely
to substantive requirements of the MUTCD. The origin of the substantive
requirements, and any deviations from the MUTCD, are explained in the
Section-by-Section discussion below.
The Board notes that four state DOTs and three local government
commenters expressed concern that these guidelines ``conflict'' with
the MUTCD. One state DOT and two local governments indicated that where
MUTCD and these guidelines differ, the MUTCD should apply. Two state
DOTs commented that if certain treatments are required for
accessibility purposes, they should be contained in the MUTCD. Another
state department of transportation observed that the MUTCD and the
guidelines should not be interpreted as conflicting.
In the development of this final rule, the Access Board consulted
representatives from USDOT's Federal Highways Administration, which
issues the MUTCD. In addition, the Access Board reviewed USDOT's
proposed rule to update the MUTCD. National Standards for Traffic
Control Devices; the Manual on Uniform Traffic Control Devices for
Streets and Highways; Revision, 85 FR 80898 (proposed Dec. 14, 2020)(to
be codified at 23 CFR parts 470, 635, and 655). When USDOT undertakes
its own rulemaking to adopt these guidelines as enforceable standards,
USDOT will determine how to ensure that there is no ``conflict'' within
its own regulations.

VI. Section-by-Section Analysis

A. Structural Changes to the Rule Text

To improve clarity of the rule text, the Board made some non-
substantive structural changes. First, while not a change to the rule
text itself, the advisories that appeared with the proposed rule text
have been removed. The Access Board no longer publishes advisories in
the Code of Federal Regulations (CFR) as the information contained in
those advisories is guidance, not mandatory requirements. The Access
Board will provide guidance on its website to assist regulated parties
understand and properly implement the final enforceable standards that
are

[[Page 53614]]

issued by the standard-setting agencies. In some areas, information
that previously appeared in an advisory has been moved to the rule
text. Those instances are discussed in the section-by-section
discussion below.
Second, as previously noted, the Board eliminated incorporation by
reference of portions of the MUTCD, opting instead to state the
requirements directly in the PROWAG rule text. The Board agreed with
numerous commenters who indicated that stating the requirements in the
rule text would provide greater clarity. Substantive changes relating
to the specific MUTCD sections referenced in the proposed rule are
discussed in their respective sections below.

B. Chapter 1: Application and Administration

R101 Purpose and Application
The final rule contains scoping and technical requirements that
ensure that pedestrian facilities located in public rights-of-way are
readily accessible to and usable by pedestrians with disabilities. This
includes both pedestrian facilities in a street or highway right-of-way
and pedestrian facilities located in an independent right-of-way or
easement, such as a shared use path. These scoping and technical
requirements apply to facilities covered by both the ADA and the ABA
and become mandatory once adopted for enforcement by another Federal
agency issuing regulations implementing the ADA, Section 504 of the
Rehabilitation Act, or the ABA.
The intent of this section has not changed from what was proposed
in the NPRM; however, the text has been edited for clarity.
Specifically, R101.1 states that the guidelines apply to public rights-
of-way, including a public right-of-way that forms the boundary of a
site or that lies within a site. This clarification is provided so that
jurisdictions understand that these guidelines apply to public rights-
of-way that may also be part of a ``site,'' and thus subject to 36 CFR
1191. See CFR part 1191, App. B, 106.5 & App. C F106.5 (defining
``site'' as a ``parcel of land bounded by a property line or a
designated portion of a public right-of-way''). Where a public right-
of-way is part of a site covered by the ABA or Title II of the ADA,
these guidelines apply to the public right-of-way portion of that site.
As stated in the Major Issues section above, these guidelines do
not address existing facilities unless they are altered at the
discretion of a covered entity. DOJ's and USDOT's regulations
implementing these guidelines under the ADA, will address requirements
for existing pedestrian facilities in the public right-of-way.
R102 Deviations From These Guidelines
This section, titled ``Equivalent Facilitation'' in the proposed
rule, states that under the ADA, the use of alternative designs,
products, or technologies that result in substantially equivalent or
greater accessibility and usability than the proposed guidelines is
permitted. The Access Board has added language clarifying that the use
of alternative designs, products, or technologies is not permitted for
facilities subject to the ABA. The Board has also added a provision at
R102.2 explaining that under the ABA, deviations from an enforceable
standard issued by GSA, HUD, DoD, or USPS require an approved waiver or
modification, which is issued by the standard-setting agency upon a
determination that the waiver or modification is ``clearly necessary.''
See 42 U.S.C. 4156.
R103 Conventions
R103.1 Conventional Industry Tolerances
Conventional industry tolerances apply where dimensions are not
stated as a range. The final rule clarifies that dimensions that are
stated as having a specific minimum or maximum endpoint are considered
a range. For example, a cross slope specified as ``1:48 (2.1%)
maximum'' is considered a range from zero to 1:48 (2.1%). Designing to
a dimension below the maximum allows for construction inaccuracies
without the need for a tolerance.
Several engineers and state DOTs requested that we provide a list
of specific tolerances. Tolerances are determined by the industry for
the material used. It would not be beneficial to codify specific
tolerances in these guidelines that cannot be easily updated when
revised by industry. The Board also received comments requesting
guidance on how measurements should be taken to assess compliance and
others expressing concern about how construction variations would be
treated in enforcement scenarios. These concerns should be directed to
the enforcing agencies when they issue their proposed rules.
R103.2 Calculation of Percentages
Where the required number of elements or facilities to be provided
based on the specified ratio or percentage is not a whole number, the
result is rounded up to the next whole number. For example, if a group
of five benches is provided at a location that is not a transit stop or
shelter, R209.6.2 requires 50% of the benches to provide clear space
complying with R404. Since 50% of five is 2.5, the result is rounded up
and three benches would be required to provide the clear space.
In the final rule, the Board has omitted the proposed sentence
indicating that rounding down for values less than one half is
permitted where the determination of the required size or dimension of
an element or facility involves ratios or percentages. The Board notes
the potential for misinterpretation of this sentence as allowing a
regulated entity to round down the measurement of a slope, for example
a cross slope of 2.44%, to a whole number. The Board further notes that
while this provision is included in the 2004 ABA and ADA Accessibility
Guidelines, it has long been a source of confusion. Notably, the Board
received a comment from a local government entity erroneously applying
this provision to the walking speed used to determine pedestrian signal
timing.
R103.3 Units of Measurement
Linear measurements in these guidelines are stated in both U.S.
customary units and metric units. Slopes are expressed in both ratios
and percentages. Each system should be used independently and
consistently, as they may not be exact equivalents.
In the proposed rule, slope measurements were stated only in
percentages, which in most cases had been rounded to whole numbers. For
consistency with the 2004 ADA and ABA Accessibility Guidelines, which
expresses slope only in ratios, in the final rule slopes are expressed
in both ratios and percentages. The practical effect of this change is
that slopes stated as 2 percent in the proposed rule are 1:48 (2.1%) in
the final rule, which is the ratio used in the 2004 ADA and ABA
Accessibility Guidelines. The Board has elected to state percentages to
one decimal place for ease of implementation, as current digital
measuring tools commonly used in sidewalk construction typically
provide measurements to one decimal place.
R104 Definitions
This was section 105 in the NPRM but was redesignated as section
104 when the Board deleted proposed section 104 as the result of the
decision to eliminate the reference to the MUTCD in favor of providing
the actual language from the MUTCD (sometimes as modified) throughout
the rule.

[[Page 53615]]

R104.1 Undefined Terms
The proposed rule indicated that undefined terms are defined using
a collegiate dictionary in the sense that the context implies. The
final rule implements the Board's current standard approach to
undefined terms, stating that undefined terms shall be given their
ordinary meaning in the sense that the context implies.
R104.2 Interchangeability
This provision states that the plural and singular forms of a word
are used interchangeably in these guidelines.
R104.3 Defined Terms
The Board's decision to include all substantive requirements in the
final rule text in lieu of incorporating MUTCD provisions by reference
has resulted in significant expansion of the number of defined terms in
these guidelines. The proposed rule text, as modified by the SNPRM,
included 17 definitions and nine MUTCD definitions that were
incorporated by reference.
In addition, the proposed rule specified that terms appearing in
the sections of the MUTCD that were incorporated by reference would
have the meanings as stated in the definition section of the MUTCD. In
moving MUTCD requirements and definitions that had been previously
incorporated by reference directly into the rule text, the Board also
added to the rule text the relevant defined terms from MUTCD that
appeared in these sections.
The Board also added several terms to provide clarity to the rule
text and removed a few defined terms that were no longer needed in
light of revisions to the proposed rule. In total, the final rule has
52 defined terms, which are identified throughout the rule text in
italic font.
The following terms were added from the MUTCD, either verbatim, or
with minimal edits made for clarity: Accessible Pedestrian Signal,
Crosswalk, Highway, Median, Pedestrian, Pedestrian Interval Change,
Pedestrian Hybrid Beacon, Pedestrian Signal Head, Push Button, Push
Button Locator Tone, Roadway, Roundabout, Sidewalk, Splitter Island,
Traveled Way, and Walk Interval. The following additional terms, which
have definitions that are not taken from MUTCD, have been added to
provide further clarity to the rule text: Block Perimeter, Boarding
Platform, Building, Curb, Detectable Warning Surface, Developed, Grade,
Parallel Curb Ramp, Passenger Loading Zone, Pedestrian Activated
Warning Devices, Pedestrian Refuge Island, Perpendicular Curb Ramp,
Ramp, Stair, Standard Curb Height, Street,\8\ Transit Shelter, Transit
Stop, Transitional Segment, and Vibrotactile.
---------------------------------------------------------------------------

\8\ In the NPRM, the Board proposed to incorporate the
definition of ``street'' from MUTCD, which is used in the MUTCD as a
synonym of ``highway.'' However, the definition of ``street'' in the
final rule reflects the use of the term in PROWAG as a synonym of
the defined term ``roadway,'' not ``highway.''
---------------------------------------------------------------------------

A few proposed defined terms have been removed from the final rule:
<bullet> ``Facility,'' a term and definition that came from ADAAG,
has been replaced by ``pedestrian facility'' and a corresponding
definition that more accurately reflects how the term is used in
PROWAG. In addition, the reference to ``elements'' was removed from the
definition of pedestrian facility, since elements are components of a
pedestrian facility.
<bullet> ``Island,'' which was proposed to be incorporated by
reference from MUTCD, has been replaced by ``Pedestrian Refuge Island''
with a corresponding definition that clarifies the characteristics that
make an island suitable for pedestrian refuge (specifically, that the
traversable path of the island be at least 72 inches long in the
direction of travel to allow sufficient space for two detectable
warning surfaces, separation of those surfaces, and space for a
pedestrian to wait).
<bullet> ``Intersection,'' which was proposed to be incorporated by
reference from MUTCD, has been eliminated from the defined terms. The
Board concluded that future regulated entities, specifically state and
local departments of transportation, can readily identify an
intersection, and that reproducing the highly technical MUTCD
definition of intersection in the rule text would not provide
additional clarity.
<bullet> ``Vertical Surface Discontinuities'' was eliminated
entirely from the rule text. In the final rule, this concept is
expressed in the relevant provisions as ``changes in level,'' which is
a widely understood requirement of ADAAG.
In the final PROWAG rule text, most of the original definitions
that were proposed have been edited for clarity as follows:
<bullet> Accessible: The word ``facility,'' which is no longer a
defined term, has been replaced with ``pedestrian facility'' and
``element.''
<bullet> Alteration: The defined term now also includes
``altered.'' As explained in the Major Issues section above, the
definition has been edited to clarify that an addition of a pedestrian
facility to an existing, developed right-of-way is considered an
alteration within the requirements of PROWAG. Several commenters
requested edits to or clarifications regarding the examples that were
included in the proposed definition. The Board has removed the examples
from the definitions. Providing examples, if necessary, is better left
to the enforcing agencies.
<bullet> Blended Transition: This definition has been revised to
more accurately describe the portion of a pedestrian access route that
is a blended transition, and to differentiate blended transitions from
curb ramps.
<bullet> Cross Slope: The word ``grade'' has been changed to slope,
which reflects more typical usage.
<bullet> Curb Line: The word ``highway'' was removed for clarity,
as ``street'' sufficiently conveys the concept.
<bullet> Curb Ramp: The edited definition clarifies that the words
``parallel'' and ``perpendicular'' are stated relative to the curb or
street that curb ramps serve.
<bullet> Element: The word ``pedestrian facility'' has been
substituted for ``facility,'' reflecting the substitution of defined
terms, as described above.
<bullet> Grade Break: The term ``running slope'' has been
substituted for ``grade'' for consistency in the way these terms are
used throughout the rule text.
<bullet> Operable Part: The phrase ``interact with the element''
has been added to as a use of an operable part. This addition is
designed to cover QR codes and any other markings that are intended to
be scanned with a mobile device.
<bullet> Pedestrian Access Route: The term ``accessible'' has been
added to clarify that the pedestrian access route is the portion of a
pedestrian circulation path that complies with the pedestrian access
route accessibility requirements in these guidelines. The phrase
``coinciding with'' has been removed as redundant.
<bullet> Pedestrian Circulation Path: The word ``travel'' was
removed in favor of the word ``use'' for clarity.
<bullet> Qualified Historic Building or Facility: The term
``qualified historic facility'' was updated to ``qualified historic
building or facility'' for clarity to match the term that is used in
the 2004 ABA and ADA Accessibility Guidelines.
<bullet> Running Slope: The word ``slope'' has been substituted for
``grade'' for consistency. In response to comments, the Board has
clarified that grade and running slope are synonymous.
<bullet> Shared Use Path: In response to comments from state and
local government entities, the Board has edited the definition to
emphasize the transportation purpose of shared use paths. While many
shared use paths are also used for recreation, a path that is used
primarily for recreation is not subject to the shared use path

[[Page 53616]]

requirements in this rule. Regulated entities should carefully consider
the purpose and use of paths when determining whether to treat them as
shared use paths under these guidelines. A wooded cut-through in a
suburban area regularly used by residents on foot and on bicycles to
reach a transit stop is likely a shared use path. A hiking trail
through a mountainous area used primarily for recreational hiking and
biking is probably not a shared use path under these guidelines.

C. Chapter 2: Scoping Requirements

R201 General
Scope (R201.1)
All newly constructed pedestrian facilities and elements, and all
altered portions of existing pedestrian facilities must comply with
these guidelines. There is no substantive change in the general scope
of the final rule from what was proposed. However, as described in the
major issues section above, the Board clarified that newly constructed
pedestrian facilities are those that are constructed on greenfield. Any
pedestrian facilities or elements that are constructed on or added to
developed land, as defined in section R104 are subject to the
requirements for alterations, described in section R202.
R201.1 excepts from compliance pedestrian facilities within areas
used only by service personnel for maintenance, repair, or monitoring
of equipment. This exception was included in the proposed rule as a
separate provision entitled ``R203 Machinery Spaces.''
Temporary and Permanent Pedestrian Facilities (R201.2)
This provision specifies that both temporary and permanent
pedestrian facilities in the public right-of-way must comply with these
guidelines. Temporary facilities might include outdoor festival
structures or pop-up service counters. In the final rule, the provision
clarifies that when a pedestrian circulation path or transit stop is
temporarily closed, an alternate pedestrian access route or transit
stop must be provided in accordance with R204. As stated in R204,
temporary alternate pedestrian access routes are subject to the
technical requirements of R303 and R402 in lieu of the full
requirements for permanent pedestrian access routes described at R203.
Buildings, Structures, and Elements (R201.3)
This provision explains that buildings, structures, and elements
that are in the public right-of-way and are not specifically covered by
these guidelines are subject to the applicable requirements for
buildings and sites at 36 CFR part 1191. In response to commenters'
requests for clarity as to what is intended here, the Board added
examples of buildings, structures and elements at safety rest areas or
park and ride lots, and temporary performance stages and reviewing
stands. As stated in R201.2, all permanent and temporary pedestrian
facilities in the public right-of-way must comply with accessibility
standards. However, PROWAG does not provide technical requirements for
every type of structure that is provided for pedestrian use in the
public right-of-way. For example, technical accessibility requirements
for performance stages are not included in PROWAG, but this provision
directs a jurisdiction constructing a performance stage in the public
right-of-way to the buildings and sites guidelines for technical
accessibility requirements of that structure.
R202 Alterations
The main purpose of this section is to describe the additional
flexibilities provided for compliance when construction of pedestrian
facilities and elements occurs on developed land as compared to the
expected full compliance of new construction on undeveloped land. These
flexibilities are as follows.
<bullet> R202.2: Altered elements are connected by a pedestrian
access route to an existing pedestrian circulation path. This allows
altered elements to tie into an existing pedestrian circulation path
(which may not necessarily have a pedestrian access route) instead of
requiring a full network of pedestrian access routes as specified in
R203.2, which for new construction requires all accessible elements,
spaces, and pedestrian facilities to be connected by a pedestrian
access route. A transitional segment, as defined in R104.3, may be used
in the connection of an altered pedestrian access route to an existing
pedestrian circulation path.
<bullet> R202.3: Alterations must comply with a requirement to the
maximum extent feasible where existing physical constraints make full
compliance with that requirement technically infeasible. Examples of
physical constraints include underlying terrain, underground
structures, adjacent developed facilities, drainage, or the presence of
a significant natural or historic feature. The language of this section
has been revised for clarity. Numerous commenters indicated that the
proposed language, which stated that compliance was required to the
``extent practicable'' where physical constraints made full compliance
``impracticable,'' was confusing, and requested that the Board use the
phrase ``maximum extent feasible'' the term that is used in the 2004
ABA and ADA Accessibility Guidelines. The Board concurred with
commenters and modified the language of the provision for consistency.
<bullet> R202.5: Alterations to qualified historic buildings or
facilities must comply with a requirement to the maximum extent
feasible where full compliance with the requirement would threaten the
historic significance of the qualified historic building or facility.
The wording of this provision was changed slightly from the proposed
language to clarify that this exception is not intended to protect
every element of a historic property, for example every historic
cobblestone, present in a public right-of-way. Rather, the intent is to
protect the historic significance of the facility generally. The
revised language clarifies, for example, that the removal of a portion
of cobblestones to install a curb ramp that provides access to
individuals with disabilities does not necessarily threaten the
historic significance of the entire facility.
In addition, in section R202.4, the final rule states that
alterations may not decrease the accessibility of existing pedestrian
facilities below the requirements of the guidelines. This provision has
been edited for clarity. The Board uses the term ``accessible'' in the
rule text to refer to pedestrian facilities that are compliant with the
guidelines (R104.3). This baseline is useful for jurisdictions
implementing PROWAG in certain alteration scenarios where they must
make choices amongst various accessible features to achieve compliance.
For example, to add a missing landing, the slope of an existing curb
ramp may need to be increased to the maximum allowable slope. This is
an acceptable choice under these guidelines.
In addition to the above-described changes, the Board has made two
other important modifications to the Alterations section of these
guidelines. First, as described in the Major Issues section, the Board
has included pedestrian facilities and elements that are ``added'' to
developed areas within the definition of alteration. This is a change
from the proposed rule where added elements and facilities were subject
to the requirements for new construction. The Board agreed with
numerous commenters who expressed the view that existing physical
constraints present on developed property might affect the extent to

[[Page 53617]]

which some added elements and facilities in the public right-of-way
could comply strictly with new construction standards.
Second, also as discussed in the Major Issues section, the Board
stated at proposed R202.3 that each altered element, space, or facility
``within the scope of the [alteration] project'' was required to comply
with these guidelines. Some state and local government commenters
indicated confusion over the meaning of ``scope of the project,'' and
some disability rights advocacy organizations expressed concern that
the phrase did not clearly convey expectations for compliance with
these guidelines. The Board concurs that this provision was an
unnecessary source of confusion and has eliminated the proposed R202.3
(which would have appeared at 202.1 in the final rule) as duplicative
with the general scoping provision at R201.1. The term ``scope of the
project'' no longer appears in the guidelines. As in the 2004 ABA & ADA
Accessibility Guidelines, whatever is altered must be made compliant.
R203 Pedestrian Access Routes
This section contains scoping requirements that explain where
pedestrian access routes are required, and scoping requirements that
point to the technical requirements in Chapters 3 and 4 applicable to
each component of pedestrian access routes.
Pedestrian access routes are a portion of the traversable
pedestrian facilities in a public right-of-way that must comply with
the accessibility requirements in these guidelines. In new
construction, there will be a continuous network of pedestrian access
routes that connect all accessible elements, spaces, and pedestrian
facilities (R203.2). In alterations, a continuous network of pedestrian
access routes will be established piece-by-piece as pedestrian
facilities are altered and brought into compliance with PROWAG.\9\
---------------------------------------------------------------------------

\9\ Consistent with the incremental method of application of
this rule, the Board has included an exception for existing
pedestrian circulation paths. This exception allows a jurisdiction
to alter an element in the public right-of-way that is on or
adjacent to an existing pedestrian circulation path without altering
the pedestrian circulation path to provide a fully compliant
pedestrian access route. For example, if a jurisdiction installs a
bench on an existing sidewalk, the bench must comply with PROWAG
requirements (R209.6), but the jurisdiction is not also required by
PROWAG to replace the sidewalk. However, if the jurisdiction were to
install a bench where no pedestrian circulation path existed, it
would be required to connect the bench with a compliant pedestrian
access route to an existing pedestrian circulation path (R202.2).
---------------------------------------------------------------------------

A pedestrian access route exists within or is connected by each
newly constructed or altered traversable pedestrian facility:
pedestrian circulation paths (including shared use paths) (R203.3);
crosswalks (R203.4); pedestrian at-grade rail crossings (R203.5); curb
ramps and blended transitions (R203.6); pedestrian overpasses and
underpasses (R203.7); ramps (R203.8); elevators and limited use/limited
application elevators (R203.9); platform lifts (R203.10); and doors and
gates (R203.11).\10\ Again, the goal, over time, is a continuous
accessible pathway through all traversable facilities in the public
right-of-way.
---------------------------------------------------------------------------

\10\ Stairs are not part of a pedestrian access route and are
not acceptable as a sole connector of pedestrian facilities.
However, stairs may be provided in addition to ramps or other
pedestrian access route components. Where stairs are provided in the
public right-of-way, they must meet technical requirements (R213).
---------------------------------------------------------------------------

The structure of section R203 Pedestrian Access Routes in the final
rule has been revised from the proposed section R204 of the NPRM (as
modified by the SNPRM). First, with edits to R203.1 General, the Board
has clarified that the facilities listed in R203 either ``contain'' or
``connect'' a pedestrian access route. In the years since the NPRM was
published, Access Board technical staff have received inquiries related
to whether each piece of sidewalk or pedestrian facility is expected to
be part of a pedestrian access route, or whether, for example, a
pedestrian access route could be provided on one side of the street and
not the other. This confusion stems from a requirement in the 2004 ABA
and ADA Accessibility Guidelines that at least one accessible route
connect buildings, sites, elements, and spaces, but does not require
that each route between these locations be accessible. See 36 CFR part
1191, App. A, Ch. 2, 206.2.2.
The public right-of-way in this aspect is not analogous to
buildings and sites. Every new or altered pedestrian facility must be
made accessible. Thus, the Access Board clarifies that the requirements
for pedestrian access routes are applicable to every newly constructed
or altered pedestrian circulation path, crosswalk, pedestrian at-grade
rail crossing, and pedestrian overpass and underpass, and the curb
ramps, ramps, elevators, platform lifts, and doors and gates that
connect pedestrian facilities with pedestrian access routes must also
comply with the accessibility requirements of PROWAG.
Second, the Board has moved the scoping for crosswalks (referred to
as pedestrian street crossings in the proposed rule at NPRM R206) and
the scoping for curb ramps and blended transitions (NPRM R207) into the
final rule's scoping section for pedestrian access routes at R203. The
Board made this change to further clarify that crosswalks, curb ramps,
and blended transitions are pedestrian facilities that comprise part of
the continuous network of pedestrian access routes present in the
public right-of-way.
Third, in response to numerous technical assistance inquiries over
the years since the NPRM was published, in the final rule the Board has
added detailed scoping as to the required placement of curb ramps. The
scoping clarifies when curb ramps are required at intersection
crosswalks, midblock and roundabout crosswalks, on-street parking, and
passenger loading zones. It further clarifies that when alterations are
made to crosswalks, missing curb ramps must be added as part of the
alteration. This added scoping is discussed in greater detail below.
Pedestrian Circulation Paths (R203.3)
In response to the proposed rule (NPRM 204.2), some commenters
requested that the Access Board explicitly require that jurisdictions
provide sidewalks, while others requested that the Board clarify that
the PROWAG rule does not require sidewalks. The final rule requires
that pedestrian access routes connect accessible elements, spaces, and
pedestrian facilities (R203.2). A pedestrian access route is comprised
primarily of conforming portions of a pedestrian circulation path,
which are defined as ``a prepared exterior or interior surface provided
for pedestrian use in the public right-of-way'' (R104.3). It does not
matter under the rule whether the pedestrian access route runs through
a sidewalk, shared use path, shoulder intended for pedestrian use, or
other type of prepared surface, as long as it meets the technical
requirements for pedestrian access routes. Jurisdictions may meet the
requirements of PROWAG using any of the available options.
In the final rule the Board has revised this provision to indicate
that transitional segments, as defined in R104.3, may be used to
connect new or altered pedestrian access routes to existing pedestrian
circulation paths. Transitional segments appeared in the proposed rule
at NPRM R202.3.2.
Crosswalks (R203.4)
As noted above, in the final rule, the Board has relocated the
scoping for crosswalks to the scoping section for pedestrian access
routes to reinforce that crosswalks have a pedestrian access

[[Page 53618]]

route within them and are part of the continuous network of accessible
pedestrian facilities required through public rights-of-way. In
addition, the Board has substituted the MUTCD-defined term
``crosswalk,'' with minor revisions to the MUTCD definition, for the
term ``pedestrian street crossing'' that was used in the proposed rule
(NPRM R204.3). In doing so the Board clarifies that there is no
distinction between the places the Access Board expects pedestrian
crossings to occur and the industry understanding of the places where
crosswalks are located. The main impact of the use of the MUTCD-defined
term ``crosswalk'' in place of ``pedestrian street crossing'' is to
further clarify the places where curb ramps are required. This is
detailed below in the discussion of R203.6.
Pedestrian At-Grade Rail Crossings (R203.5)
The Board has added scoping for pedestrian at-grade rail crossings
to clarify that wherever pedestrian at-grade rail crossings are
provided they contain a pedestrian access route. The technical
requirements are referenced.
Curb Ramps and Blended Transitions (R203.6)
The 2011 NPRM specified that a curb ramp (or blended transition)
must be provided for each pedestrian crossing (NPRM R207.1). The
proposed rule indicated that a diagonal curb ramp would continue to be
permitted in an alteration scenario where physical constraints
prevented the installation of a curb ramp for each crossing (NPRM
R207.2). In response to these proposed provisions, a few state and
local government commenters requested flexibility to install a single
curb ramp based on engineering judgement, while others either agreed
with the changes or requested that the Board more clearly state the
requirements. Two local government commenters lamented the costs of
having installed non-compliant curb ramps over a number of years. Other
individuals and disability rights advocacy organizations agreed with
limiting the use of diagonal curb ramps.
The final rule maintains the requirement that one curb ramp or
blended transition be provided for each crosswalk at an intersection
corner, and alternatively allows a blended transition to span all
crosswalks at an intersection corner. Use of a single curb ramp at the
apex of an intersection corner is permitted in alterations where
existing physical constraints make compliance technically infeasible.
Diagonal curb ramps often route users into the roadway, not within a
crosswalk. To provide equity to persons with disabilities in the public
right-of-way, PROWAG must ensure that a person in a wheelchair who
requires a curb ramp to cross a street is afforded the same opportunity
to stay within the safety of a crosswalk as a person who is able to
step off the curb directly into a crosswalk. Thus, unless there are
existing physical constraints that prohibit the provision of a curb
ramp for each crosswalk, one curb ramp per crossing that is contained
within the crosswalk must be provided.
The Board notes that since 2011, numerous state and local
jurisdictions have adopted a requirement for one curb ramp per
crosswalk at an intersection corner, and the Board is not aware of
widespread engineering concerns that have resulted from this shift in
local policies. See FRIA at 99. In addition, the Board notes that when
requesting flexibility for new construction, jurisdictions were
characterizing newly installed curb ramps in existing rights-of-way as
new construction. Such installations are considered alterations under
the final rule, and the flexibility for a single curb ramp would be
permitted if physical constraints make compliance technically
infeasible. The Board does not anticipate that insurmountable
engineering issues would prevent full compliance in new construction,
which as described above, would be construction on undeveloped land.
In response to numerous technical assistance inquiries received by
the Board since the NPRM was published seeking clarification on the
places where curb ramps must be installed, the Board has added detailed
scoping for the required placement of curb ramps. The NPRM stated that
curb ramps or blended transitions are required at each pedestrian
street crossing. This substantive requirement has not changed, but the
Board has provided further clarification regarding what it meant by
``pedestrian street crossing'' to explain where curb ramps are
required. As described above, the Board replaced the term ``pedestrian
street crossing'' with the MUTCD-defined term ``crosswalk.''
The MUTCD definition of crosswalk, which appears in R104.5,
indicates that a crosswalk is present wherever there is a pedestrian
circulation path on one side of a street that approaches the roadway at
an angle such that the path would cross the street if the lateral lines
of the path were continued (regardless of whether it is marked or
unmarked), or where pavement markings indicate a crosswalk. R203.6.1.1
and R203.6.2 clarify that a curb ramp or blended transition must be
provided at each end of a crosswalk at an intersection corner, a
midblock crossing, and a roundabout crossing. These provisions further
clarify that where crossing is prohibited at an intersection or not
intended midblock or at a roundabout, jurisdictions must take care to
ensure that there is no crosswalk, no curb ramp, and the pedestrian
circulation path is separated from the roadway. Information on how to
ensure that no crosswalk is present has been added to these provisions
for clarity. This information was previously stated in an advisory that
accompanied the NPRM rule text (NPRM Advisory 206).
Equity in the public right-of-way requires that persons with
disabilities have equal access to crosswalks and information about
whether a crosswalk is present. Where pedestrian crossing is permitted,
curb ramps must be provided so that persons who use wheelchairs can
access them. Where pedestrian crossing is prohibited at an intersection
or is not intended midblock or at a roundabout, cane-detectable
features must indicate to persons who are blind that this a not a place
to cross. Several state DOTs commented on the NPRM advisory, expressing
concern that the addition of detectable treatments would be costly,
unnecessary, or obstruct sightlines for motorists. The Board has
included an assessment of the costs in its Final Regulatory Impact
Analysis and notes that jurisdictions have options for ensuring that
they do not create a crosswalk where crossing is prohibited or not
intended. This includes options, such as grass strips and landscaping,
that can be used where a jurisdiction is concerned that a sign or
barrier might obstruct motorists' sightlines.
The Board is aware of concerns expressed by individuals seeking
technical assistance implementing the proposed rule that a curb ramp is
required on each side of a crosswalk, even in scenarios where there is
a pedestrian circulation path only on one side. The purpose of this
requirement is to ensure that a person in a wheelchair who has entered
a crosswalk on one side is able to safely exit the roadway on the other
side as a person who does not use a wheelchair would do by stepping
onto the curb. Jurisdictions that do not wish to provide a curb ramp on
the side of the street where no pedestrian circulation path is present
must ensure that there is no crosswalk, as defined in R104.3. Thus, the
jurisdiction must provide a separation between the pedestrian
circulation path and the roadway to indicate to pedestrians that
crossing is prohibited. Where no

[[Page 53619]]

crosswalk is present and a separation treatment exists, curb ramps are
not required. USDOT and DOJ may provide additional information
regarding the acceptable characteristics of a separation treatment used
to indicate the absence of a crosswalk.
The Board has added scoping provisions at R203.6.1 clarifying that
curb ramps or blended transitions may be required to connect on-street
parking spaces, on-street parking space access aisles, and passenger
loading zones to pedestrian access routes if needed to accomplish the
required connection.
At R203.6.2, the Board has clarified that when alterations are made
to crosswalks, curb ramps or blended transitions must be provided on
both ends of the crosswalk where the pedestrian access route crosses a
curb. This provision provides consistency with DOJ's and USDOT's joint
technical assistance document on the requirements to provide curb ramps
when streets, roads, or highways are altered through resurfacing. See
Department of Justice/Department of Transportation Joint Technical
Assistance on Title II of the Americans with Disabilities Act
Requirements to Provide Curb Ramps when Streets, Roads, or Highways are
Altered through Resurfaces, available at <a href="https://www.fhwa.dot.gov/civilrights/programs/ada/doj_fhwa_ta.cfm">https://www.fhwa.dot.gov/civilrights/programs/ada/doj_fhwa_ta.cfm</a>; see also Q & A Supplement to
the 2013 DOJ/DOT Joint Technical Assistance on the Title II of the ADA
Requirements To Provide Curb Ramps when Streets, Roads, or Highways are
Altered through Resurfacing, available at <a href="https://ada.gov/doj-fhwa-ta-supplement-2015.html">https://ada.gov/doj-fhwa-ta-supplement-2015.html</a>. By adding this requirement to PROWAG, the Board
seeks to minimize confusion as to the legal obligations of
jurisdictions to provide curb ramps.
Pedestrian Overpasses and Underpasses (R203.7)
In R203.7, the Board has clarified that pedestrian overpasses and
underpasses include overpasses and underpasses on shared use paths. In
addition, the Board has eliminated platform lifts as an option to
achieve accessibility of these structures in new construction. A state
disability council opined in its comments that limited use/limited
application elevators and platform lifts do not provide equal access
because of limited functionality. Platform lifts are more difficult for
users with disabilities to independently operate and are more likely to
breakdown in outdoor environments than elevators and limited use/
limited application elevators. The Board is aware of many instances of
maintenance issues and mechanical failures with respect to platform
lifts and has thus revised the rule text to allow these devices only in
alterations when installation of an elevator or limited use/limited
application elevator is not technically feasible. Jurisdictions that
install platform lifts should be aware of their maintenance obligations
to ensure platform lifts remain operable at all times that the
pedestrian facility is open for pedestrian use.
Ramps (R203.8); Elevators and Limited Use/Limited Application Elevators
(R203.9); Platform Lifts (R203.10)
At R203.8 through R203.10, the Board added scoping provisions for
ramps, elevators and limited use/limited application elevators, and
platform lifts so that it is clear that wherever these facilities are
present in the public right-of-way, they must comply with accessibility
requirements.
Doors, Doorways, and Gates (R203.11)
In the final rule, the Board has revised the scoping for doors,
doorways, and gates to require that all doors, doorways and gates that
are part of a pedestrian access route must comply with the specified
technical accessibility requirements. This is a change from the
proposed rule, which required all doors, doorways, and gates of any
pedestrian facility to comply with requirements (NPRM R218), and a
change from the SNPRM which exempted doors, doorways, and gates on
shared use paths from compliance (SNPRM R218). In the preamble to the
SNPRM, the Board indicated that the exemption for shared use paths was
provided to avoid a perceived conflict with AASHTO guidance. 78 FR
10110, 10113 (Feb. 13, 2013). AASHTO discourages the use of physical
barriers on shared use paths. See AASHTO, Guide for the Development of
Bicycle Facilities at 5-46.
In response to the SNPRM, several disability rights advocacy
organizations commented that doors, doorways, and gates on shared use
paths should not be excepted, and two state DOTs requested clarity
regarding applicable technical standards for these facilities. The
Board concurred with commenters that pedestrian gates on shared use
paths should not be excepted from accessibility requirements. Persons
with disabilities must be able to access shared use paths through gates
if they are provided. The Board has thus reinstated the technical
requirements for doors, doorways, and gates in the final rule. Further,
consistent with AASHTO guidance, which recommends the use of bollards
if physical barriers are needed to restrict motor vehicle entry, the
final rule permits the use of bollards on shared use paths (R302.2).
R204 Alternate Pedestrian Access Routes, Transit Stops, and Passenger
Loading Zones
Alternate Pedestrian Access Route (R204.1)
The proposed scoping for alternate pedestrian access routes stated
that an alternate pedestrian access route is required when a pedestrian
circulation path is closed due to construction, alterations,
maintenance operations, or other similar conditions (NPRM R205). In the
final rule, the Board has maintained similar scoping; however, it has
removed the term ``alterations'' from the list of conditions to avoid
confusion as ``construction'' accurately covers the intended scenario.
In addition, the Board has edited the text to indicate that the
requirement to provide an alternate pedestrian access route is
triggered by a pedestrian circulation path being made inaccessible due
to the described conditions, rather than being completely closed, since
a pedestrian circulation path can be unusable for persons with
disabilities without being completely closed to all users. The Board
has added ``closure'' to the list of conditions triggering the
requirement for an alternate pedestrian access route to clarify that
where a pedestrian circulation path is completely closed for any
reason, an alternate pedestrian access route must be provided.
In the proposed rule, the scoping provision for alternate
pedestrian access routes pointed to provisions of the MUTCD that were
incorporated by reference. The final rule instead points to the
relevant technical provisions of chapters 3 and 4, as the MUTCD
provisions are no longer incorporated by reference.
In response to the proposed rule, state and local government
commenters raised concerns regarding scenarios where the alternate
route would need to deviate substantially from the original pedestrian
circulation path. For example, one state DOT indicated that freeway
widening projects may necessitate the complete closure of a bridge,
including the pedestrian facilities, making an alternate pedestrian
access route infeasible or impossible to provide.
In response to these concerns, in the final rule the Board has
added an exception allowing an ``alternate means of providing access''
for pedestrians with disabilities where establishing an alternate
pedestrian access route is technically infeasible. An ``alternate

[[Page 53620]]

means of providing access'' does not mean an alternate pedestrian
access route that falls short of the technical requirements stated at
R303. Rather, this exception is intended to allow for completely
different means of access in scenarios such as a bridge closure, where
establishing an alternate pedestrian access route is not technically
feasible. For example, in the case of a bridge closure, an alternate
means of providing access might be the provision of accessible shuttle
bus service. DOJ and USDOT may provide additional information regarding
acceptable alternate means of providing access and the circumstances
under which this exception may be used.
The Access Board received numerous public comments supporting a
requirement for the provision of alternate pedestrian access routes,
including approximately 150 individual commenters and several
disability rights and pedestrian advocacy organizations. Several local
government commenters and one state DOT requested flexibility to
provide alternate accessible routes only when deemed practicable. In
addition, two state DOTs, two local government commenters, and two
industry organizations expressed concern regarding the cost of
providing alternate routes.
The Board acknowledges that there are costs involved in providing
alternate pedestrian access routes and has assessed those costs in the
FRIA. See FRIA at 126. However, equity in our public rights-of-way
cannot be achieved without the provision of temporary accessible
facilities where permanent accessible facilities are temporarily
unavailable. A person without a disability may readily assess safety
and traffic conditions and navigate around a closed pedestrian
circulation path if an alternate facility is not provided. However, a
pedestrian with a disability may not be able to see alternatives,
assess traffic to step into a roadway, or have the ability to step on
and off of the curb for a few feet around a closure. The Board thus
maintains the requirement for the provision of alternate pedestrian
access routes where pedestrian circulation paths are made inaccessible
due to construction, maintenance operations, closure, or similar
conditions. The technical requirements, now stated in R303, seek to
provide minimum accessibility for alternate routes while minimizing the
costs for regulated entities. The technical requirements are detailed
in the discussion of section R303, below.
Alternate Transit Stops (R204.2)
In the final rule, the Board has added a provision requiring that
where accessible transit stops are not accessible due to construction,
maintenance operations, or other similar conditions, an alternate
transit stop be provided. MUTCD section 6D.01, which the Board proposed
to incorporate by reference indicates that to accommodate the needs of
individuals with disabilities, transit stops should be maintained in
temporary traffic control zones (6D.01 paragraph 11). If the
accessibility of a transit stop cannot be maintained, an alternate
accessible transit stop must be provided.
Alternate Passenger Loading Zones (R204.3)
The Board has added a provision in the scoping of the final rule to
emphasize that where a temporary passenger loading zone is provided, it
must be accessible per the relevant technical provisions. This
requirement is already covered by the general scoping provision R201.2,
which indicates that the requirements in the guidelines apply to
temporary pedestrian facilities. However, the Board added this
provision to emphasize that alternate passenger loading zones provided
in the public right-of-way during construction or maintenance
operations must be accessible.
R205 Detectable Warning Surfaces
Detectable warning surfaces are standardized surfaces built in or
applied to certain pedestrian walking surfaces to warn pedestrians who
are blind or have low vision of a hazard. A distinct cane-detectable
pattern of truncated domes provides a tactile cue of transitions to
vehicular routes and of open drop-offs at transit platforms. The
proposed rule required detectable warning surfaces at curb ramps or
blended transitions, which remove tactile cues otherwise provided by
curb faces; at cut-through pedestrian refuge islands to indicate their
presence within a crosswalk; at at-grade rail crossings not located in
a street or highway; along drop-offs at the boundary of passenger
boarding platforms, which are above standard curb height; and along
boarding sidewalk and street-level rail boarding and alighting areas
not protected by screens or guards.
In the final rule, the Board is also requiring detectable warning
surfaces on pedestrian circulation paths at driveways with stop or
yield control to alert pedestrians who are blind or have low vision
that they are walking into an active vehicular way. The Board indicated
in an advisory that accompanied the proposed rule text that detectable
warning surfaces should be provided at commercial driveways with stop
or yield control (NPRM Advisory R208.1). Several commenters, including
state and local governments, requested clarification on the provision
of detectable warning surfaces at commercial driveways. In the final
rule, the Board clarifies that detectable warning surfaces are required
at driveways where stop or yield control is provided. In the final
rule, the Board declines to limit the covered driveways to
``commercial'' driveways to ensure that pedestrian circulation paths at
driveways to multifamily housing facilities that have stop or yield
control also have detectable warning surfaces.
Some state and local government commenters encouraged the Board to
move the requirement for detectable warning surfaces at commercial
driveways from the advisory to the rule text. Two state DOT commenters
questioned whether stop or yield control was the appropriate threshold
for application of the requirement. The Board has concluded that where
there is sufficient vehicular traffic to provide stop or yield control
(i.e., stop or yield signage) or traffic signals, there is a sufficient
hazard to pedestrians who are blind or have low vision such that a
detectable warning surface is warranted to advise individuals that they
are entering an active vehicular way. Two state DOTs objected to
implementing detectable warning surfaces at commercial driveways
because they would be provided at sidewalk as opposed to street level.
In response to these concerns, the Board notes that detectable warning
surfaces are consistently used to provide tactile notification of a
vehicular way where a curb is not present. This could be at street
level, in the case of curb ramps, or at sidewalk level in the case of
driveways.
Several commenters questioned whether the Board intended to require
detectable warning surfaces at street or sidewalk level bus stops. In
R104.3, the Board added a definition of ``boarding platform'' to
clarify that detectable warning surfaces are only required where the
bus boarding and alighting area is on a platform raised above standard
curb height.
The proposed rule indicated that detectable warning surfaces are
neither required nor desirable at cut-through pedestrian refuge islands
that are less than 6 feet in length in the direction of pedestrian
travel (NPRM R208.2 and NPRM Advisory R208.2). In the final

[[Page 53621]]

rule, the Board has clarified this substantive requirement by defining
the term ``pedestrian refuge island'' at R104.3. The definition
clarifies that only islands that are at least 72 inches in length in
direction of pedestrian travel are considered suitable for pedestrian
refuge. Islands that are at least 72 inches in length allow for a 24-
inch detectable warning surface at each edge and at least 24 inches
between the surfaces to provide detectable separation of the surfaces
and to have sufficient space to wait. A cut-through island that is
shorter than 72 inches is not suitable for pedestrian refuge, and there
is thus no need to distinguish the cut-through from the rest of the
crosswalk; the timing provided for pedestrian crossing must allow for
the pedestrian to cross the entire traveled way as required by R306.2.
In the final rule, the Board has restructured for clarity the
scoping section for detectable warning surfaces at R205 to provide a
separate provision for each place that detectable warning surfaces are
required. Each provision indicates that technical requirements relevant
to that placement.
R206 Pedestrian Signal Heads and Pedestrian Activated Warning Devices
Where pedestrian signal heads and pedestrian activated warning
devices are provided at crosswalks, they must be accompanied by audible
information devices that make those visual signals accessible to
persons who are blind or have low vision. In the proposed rule, the
Board incorporated by reference sections of the MUTCD in lieu of
providing technical requirements for these devices.
As proposed by incorporation by reference of MUTCD section 4E.09
paragraph 7 (NPRM R209.1), the final rule requires that the accessible
features of pedestrian signal heads and pedestrian activated warning
devices must be available at all times.
Commenters expressed confusion regarding the expectations for
implementation of the incorporated sections of the MUTCD. In response
to these concerns, in the final rule the Board has stated the technical
requirements for accessible pedestrian signal heads and accessible
pedestrian activated warning devices directly in the rule text. The
scoping section for these devices has been modified to provide detailed
references to the new technical sections.
Numerous state and local government commenters objected to a
universal requirement for accessible pedestrian signals in new
construction wherever pedestrian signal heads are provided. As
described above in the Major Issues section, after careful
consideration of these comments, the Board has retained the requirement
for accessible features for all new and altered pedestrian signal heads
and pedestrian activated warning devices.
In the proposed rule, the Board specified that altering the signal
controller and software, or replacing the signal head, would constitute
an alteration requiring compliance with the technical requirements for
accessible pedestrian signals and push buttons. As described above in
the Major Issues section, in the final rule the Board has removed the
provision specifying the types of alterations that would trigger
implementation of the technical accessibility requirements for
pedestrian signal heads and pedestrian activated warning devices. USDOT
and DOJ may provide additional guidance on these issues.
Finally, in the final rule the Board has updated the terminology
used in the heading of this section for consistency with the
terminology used by MUTCD and USDOT, and to better described the
devices that must be made accessible.
R207 Protruding Objects and Vertical Clearance
Limitations on the extent to which objects may protrude
horizontally into a pedestrian circulation path, as well as vertical
clearance requirements above a pedestrian circulation path, apply to
the full width of pedestrian circulation paths. The specific technical
requirements for protruding objects and vertical clearances appear in
section R402 of the final rule.
In the public right-of-way context, a ``protruding object'' is
anything that extends into the three-dimensional space above a
pedestrian circulation path, or an object contained wholly within it.
Examples include, but are not limited to, streetlights, utility poles
and equipment cabinets, signposts and signs, parking meters, trash
receptacles, public telephones, mailboxes, newspaper vending machines,
benches, transit shelters, kiosks, bicycle racks, planters and planted
trees, and street sculptures. Technical requirements for protruding
objects are designed to ensure that objects located within pedestrian
circulation paths are cane-detectable, so they do not present hazards
for people who are blind or have low vision.
Regulated entities will need to comply with the requirements for
protruding objects when installing or permitting the installation of
utilities, trees, awnings, street furniture, and other objects on or
adjacent to pedestrian circulation paths. The American Association of
State Highway and Transportation Officials (AASHTO) recommends that
trees and shrubs be pruned to maintain usability of walkways, and that
permitted uses of public rights-of-way, such as sidewalk cafes, be
monitored to ensure that they do not encroach upon the pedestrian
access route. See AASHTO, Guide for the Planning, Design, and Operation
of Pedestrian Facilities 4-3 (2021). State and local governments will
be responsible for enforcing compliance with maintenance agreements to
prevent tree branches or other objects from impermissibly protruding
into a pedestrian circulation path where the jurisdiction does not
provide the maintenance directly.
The scoping provision for protruding objects included in the SNPRM
modified the proposed scoping provision text indicating that protruding
objects must not reduce the clear width required for pedestrian access
routes (NPRM 210). In the SNPRM, the Board added an 8-foot vertical
clearance requirement for shared use paths (SNPRM 210.3). In the final
rule, the Board has moved both vertical clearance and clear width
requirements to the technical section on protruding objects and
vertical clearance at R402.4 and R402.5. Comments received regarding
those provisions are addressed in the discussion of R402.4 and R402.5
below. The Board has renamed the section to ``Protruding Objects and
Vertical Clearance'' for clarity.
In response to the NPRM, a local government and an engineer
commented that the requirements for protruding objects should apply
only to the pedestrian access route portion of the pedestrian
circulation path. A local government entity commented that an exception
should be provided applying protruding objects requirements to only 36
inches of the pedestrian circulation path in constrained conditions.
While a person using a wheelchair can visually assess a sidewalk to
determine which portion has less cross slope or fewer changes in level,
a blind pedestrian or a person with low vision is not going to know
which portion of the pedestrian circulation path has been designated as
a pedestrian access route. Thus, objects that protrude into any portion
of the pedestrian circulation path could create a hazard if not cane-
detectable. The Board thus maintains the requirement that the entire
pedestrian circulation path comply with the technical requirements for
protruding objects.
The Board acknowledges that the advisory included with the proposed
rule created confusion for commenters

[[Page 53622]]

regarding the concepts of clear width and protruding objects (NPRM
Advisory 210). Clear width refers to the width of pedestrian access
route walking surface that is required to be completely clear of any
objects. This means that within the width of the pedestrian access
route, there can be no street furniture, utility poles, or other
objects of any kind directly on the walking surface. Clear width
technical requirements for pedestrian access routes are specified in
R302.2. Protruding objects refer to objects that are in the three-
dimensional area above the walking surface, but not directly touching
the walking surface. Those objects must conform to the technical
requirements for protruding objects at R402.
R208 Pedestrian Signs
Signs that are intended solely for pedestrians, including transit
signs, and all signs serving shared use paths, must comply with the
technical requirements for visual characters at R410. Thus, signs that
are not on shared use paths and are intended for both motorists and
pedestrians, or bicyclists and pedestrians, are not required to comply.
However, all signs on shared use paths are required to comply as
pedestrians (1) should be aware of the potential movement of bicycles
in the shared space, and (2) have a reasonable expectation that any
sign on a shared use path is potentially providing pedestrian
information.
The scoping excepts two categories of pedestrian signs from
compliance with technical requirements for visual characters at R410.
First, transit schedules, timetables, and maps are not required to
comply. Compliance with the technical requirements for these specific
types of transit signs would render them too large. Other types of
transit signs, such as signs that identify stops and routes, must
comply with the requirements. The second category of signs that are
exempted from compliance are signs that are mounted immediately above
or incorporated into a push button detector unit. The requirements of
R410 may also make these signs too large.
In the NPRM, the Board used inartful language to convey that signs
intended solely for pedestrians are the signs covered by this rule
(NPRM 211.2). The Board has edited this language for clarity. Also, in
the NPRM, the Board proposed that where audible sign systems and other
technologies are used to provide equivalent information to information
contained on pedestrian signs, the signs would not need to comply with
technical requirements for visual characters (NPRM R211.1). In an
accompanying advisory, the Board presented remote infrared signs as an
example of an audible technology, that if used, would make it
unnecessary for the sign to comply with technical requirements for
visual characters (NPRM Advisory 211.1). In response to the proposed
rule, two advocacy organizations for people who are blind or have low
vision and a state DOT commented that the provision of audible signs
does not negate the need for compliance with technical requirements for
visual characters.
The Board concurs that reliance on audible signs in lieu of
compliance for visual characters is insufficient for persons who have
both low vision and hearing impairments. Further, while acknowledging
the 14 commenters who indicated support for the use of remote infrared
signs, the Board has concluded that relying on technologies that
require a pedestrian to have a receiver does not currently provide
equal access to visual signs; however, in the future this may be a
possibility with more widespread development and adoption of wayfinding
mobile applications. Thus, in the final rule, all signs intended solely
for pedestrians must comply with technical requirements for visual
characters except for the two categories of signs described above.
Requirements for accessible parking space signs have been moved to
the technical section for on-street parking spaces (R310). The
requirement for signage at accessible passenger loading zones has been
eliminated in the final rule for consistency with ADAAG and to avoid
misinterpretation of the sign as indicating exclusive use for
passengers with disabilities, particularly where there is only one
loading zone.
R209 Street Furniture
Drinking Fountains (R209.2)
Each drinking fountain in the public right-of-way must comply with
accessibility requirements at 602.1 through 602.6 of Appendix D to 36
CFR part 1191 (ADA & ABA Accessibility Guidelines).
Public Street Toilets (R209.3)
Each permanent public street toilet must comply with sections 603
through 610 of Appendix D to 36 CFR part 1191 (ADA & ABA Accessibility
Guidelines). Permanent street toilets are standalone toilet room units
that are provided in public rights-of-way in cities throughout the
United States. Specific examples of these permanent street toilets are
discussed in the FRIA. FRIA at 125. Street toilets are different than,
for example, traditional restroom facilities provided at highway rest
stops. Those traditional bathroom facilities are in a building;
pursuant to R201.3, they are subject to the applicable requirements of
36 CFR part 1191 (ADA & ABA Accessibility Guidelines).
Portable toilet units must comply with section 603 of Appendix D to
36 CFR part 1191 (ADA & ABA Accessibility Guidelines). Where there are
multiple portable toilet units clustered in a single location, at least
5 percent, but no fewer than one of each type of toilet unit at each
cluster must comply with the referenced technical requirements. In this
context, ``type'' references those units differentiated by gender.
The Board has revised the scoping of the public street toilet
section for clarity, including revising the heading, which reads
``Public Toilet Facilities,'' to avoid the confusion between public
street toilets and traditional toilet facilities that was reflected in
the public comments. The Board has also corrected the references to 36
CFR part 1191 (ADA & ABA Accessibility Guidelines) and provided
separate provisions for permanent street toilets and portable toilet
units.
Tables (R209.4)
At each group of adjacent tables, at least 5 percent, but no fewer
than one table, must comply with technical accessibility requirements
at 902 of Appendix D to 36 CFR part 1191 (ADA & ABA Accessibility
Guidelines). The proposed rule had stated the requirements relative to
each ``location'' where tables were provided, and a state government
commenter indicated that this language was unclear. The Board has thus
revised the text of this provision to clarify that the requirement
applies to each group of adjacent tables, as opposed to all tables in a
larger area that might be considered a ``location.''
Sales or Service Counters (R209.5)
Each sales or service counter in the public right-of-way must
comply with section 904.4 of Appendix D to 36 CFR part 1191 (ADA & ABA
Accessibility Guidelines). In the final rule, the Board has added
exceptions (one applicable to facilities subject to the ADA and a
second applicable to facilities subject to the ABA) to this scoping for
sales and service counters that are located in a building that is not
itself in the public right-of-way, but that directly serves the public
right-of-way, such as a walk-up service window on a sidewalk. The Board
added these exceptions to eliminate confusion for sales and service
counters that are part of a building and thus subject to 36 CFR part

[[Page 53623]]

1191, but directly serve the public right-of-way. In buildings, at
least one of each type of sales or service counter must comply with
technical requirements. In the public right-of-way, each sales or
service counter must comply.
Benches (R209.6)
In the proposed rule, the Board provided a single scoping provision
for all benches in the public right-of-way except for those at tables
(which are covered under the technical requirements for tables) (NPRM
R212.6). This included benches along pedestrian circulation paths and
those at transit stops and shelters. Commenters indicated that the
requirement that clear space not overlap the area within 1.5 feet of
the front of the bench was confusing. The Board concluded that while
the requirement is appropriate for transit shelters, it should be
revised for other contexts.
In the final rule, the Board has clarified that for benches at
transit stops (R209.6.1) and benches not at transit stops or shelters
(R209.6.2) the clear space complying with R404 must be next to either
end of the bench, or if the bench does not have an ``end,'' such as a
circular bench, the clear space must be either integral to the bench or
located no more than 18 inches (455 mm) from the front of the bench.
Where the clear space is integral to the bench, there will be a break
in the bench where the clear space is located. These requirements
ensure that a pedestrian using a wheelchair may sit in proximity to a
companion seated on the bench. The Board has restructured the provision
for clarity.
In the final rule, the Board has maintained the requirement that
the clear space not overlap the area within 18 inches (455 mm) for
benches provided within transit shelters. See R209.6.1; R309.2.2. In a
transit shelter, the primary goal is to provide shelter to as many
individuals as possible within the limited space. Thus, the clear space
may be situated at the end of a bench or at least 18 inches from the
front edge of the seat, ensuring that the bench may be fully occupied
while the clear space is in use.
Four commenters requested that the Board provide technical criteria
for benches. The Board concurs with commenters that benches in the
public right-of-way should have armrests and back support for maximum
accessibility. As stated in the advisory that accompanied the proposed
rule, benches that provide full back support and armrests to assist in
sitting and standing are more useable by pedestrians with disabilities.
However, as the Board did not propose specific technical requirements,
such as specifications for armrest loads and dimensions and back
height, the Board declines to add those now at the final rule stage.
One company that provides jurisdictions with advertisement-funded
bus stop benches requested that the Board exempt bus stop benches
located on unimproved surfaces from the requirement to provide clear
space in order to protect the company's business model. The Access
Board declines this request. Consistent with the implementation
approach of many accessibility regulations, new construction and
alterations provide an opportunity for a jurisdiction to add
accessibility to a pedestrian facility at minimal additional cost.
PROWAG requires the provision of boarding and alighting areas at all
newly constructed and altered transit stops. Thus, when installing
concrete for the boarding and alighting areas required by PROWAG, a
jurisdiction has the opportunity to install a concrete pad for a bench
if the jurisdiction so desires. PROWAG does not require jurisdictions
to provide benches at transit stops, but where provided, they must
comply with accessibility requirements.
Operable Parts of Other Fixed Elements (R209.7)
Operable parts of other fixed elements to be used by pedestrians,
including street furniture, not specifically addressed by this rule
must comply with technical requirements for operable parts at R403.
This provision has been added in response to commenters' concerns about
other types of street furniture that are not specifically addressed in
the rule text.
The Board notes that operable parts on parking meters and pay
stations other than those that serve accessible parking spaces, which
have additional technical requirements specified at 310.6, are covered
under R209.7 and must comply with the technical requirements for
operable parts at R403. This means that all parking meters and pay
stations must meet clear space, reach range, and operation
requirements; however, they do not need to comply with requirements for
visual displays stated at R310.6 that ensure information is visible to
a person using a manual wheelchair. Two disability rights advocacy
organizations commented in support of clear space at all parking meters
and pay stations. The Board observes that many individuals with
disabilities use parking spaces other than accessible spaces; to ensure
equity in public rights-of-way, persons with disabilities must be able
to access parking meters and pay stations wherever they park.
R210 Transit Stops and Transit Shelters
Where provided, transit stops and transit shelters shall comply
with the technical requirements at R309. In response to the NPRM, a
local government transit advisory group commented that the Board had
failed to propose a scoping provision for vending machines at transit
shelters. The Board concurs that this was an oversight, and has added a
scoping provision for fare vending machines that references the
operable parts technical requirements at R403 and the relevant
provisions of Section 707 of 36 CFR part 1191. The Board also added a
scoping provision for operable parts of other fixed elements at transit
stops and shelters intended to be used by pedestrians.
R211 On-Street Parking
Where on-street parking is provided and is metered or designated by
signs or pavement markings, accessible parking spaces complying with
the technical provisions at R310 must be provided. The minimum number
of accessible on-street parking spaces required is determined according
to Table R211 assessing the total number of spaces.
The Board has made several revisions to this scoping section based
on public comments. In the proposed rule, the board used the total
number of spaces on a ``block perimeter'' to determine the number of
accessible spaces required. Several commenters indicated that the
meaning of block perimeter was unclear, while others noted that not all
on-street parking is located on a block perimeter. In response to these
concerns, the Board has defined block perimeter in R104.3 and included
an example within the definition for clarity. In addition, the Board
has added a provision for parking not on a block perimeter to clarify
that those on-street parking spaces are also subject to accessibility
requirements.
In response to commenter concerns, the Board has excepted on-street
spaces that are designated exclusively for commercial or law
enforcement vehicles, or residential parking. Those excepted spaces are
not counted for the purpose of determining the required number of
accessible spaces. These spaces must be designated for use solely for
the excepted purpose; spaces that are designated for commercial or law
enforcement vehicle use or residential parking only during certain
hours are not excepted and must be counted for the purpose of
determining the required number of accessible spaces. Another

[[Page 53624]]

exception states that where on-street parking spaces are altered, the
requirements of R211 shall apply only to the affected parking spaces
until the minimum number of accessible on-street parking spaces as
specified in Table R211 are provided. Thus, for example, alteration of
a single on-street parking space on a block perimeter would not trigger
the obligation to provide the total number of required accessible
spaces on the block perimeter. Only the altered space would need to be
made accessible if an insufficient number of accessible spaces were
available.
The Board notes that these minimum guidelines for the provision of
accessible parking in public rights-of-way do not prevent regulated
entities from providing additional accessible parking, including
residential accessible parking. Standard-setting agencies may also
adopt a more stringent standard.
In response to the NPRM, a local government commenter asked whether
on-street accessible spaces are required where there is an adjacent
public off-street lot, and a state government DOT requested that the
Board allow jurisdictions to combine the number of on-street and off-
street parking spaces for the purpose of designating accessible spaces.
On-street parking spaces are covered by PROWAG and off-street parking
in lots or garages is covered by the requirements at 36 CFR 1191.
Accessible parking must be separately designated for on-street and off-
street locations. To ensure equity for persons with disabilities, if
on-street parking is provided then accessible on-street parking must
also be provided.
Several local government commenters requested flexibility for the
provision of accessible on-street parking where paratransit or other
parking management programs, such as free parking, are provided for
persons with disabilities. The Board has carefully considered these
comments and has declined to provide exceptions for jurisdictions with
paratransit or parking management programs. The provision of accessible
on-street parking spaces consistent with PROWAG ensures that parking
spaces are available that will allow persons with disabilities to park
close to their destinations and have either a direct or nearby
connection to a pedestrian access route or pedestrian circulation path.
The provision of paratransit or free parking for persons with
disabilities does not address the availability of accessible parking
for persons with disabilities who rely on private vehicle
transportation. Jurisdictions that allow persons with disabled parking
placards to park in ``no parking'' or loading zone areas cannot
guarantee that those areas will have accessible features such as
proximity to a curb ramp or an adjacent sidewalk clear of obstructions
such that a ramp can be deployed.
One commenter indicated that the rule should include guidelines for
accessible electric vehicle charging stations. The Board is undertaking
a separate rulemaking to address the accessibility of electric vehicle
charging stations, which may ultimately address electric vehicle
charging stations in the public right-of-way. See ATBCB Fall 2022
Unified Agenda, available at <a href="https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202210&RIN=3014-AA48">https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202210&RIN=3014-AA48</a>.
R212 Passenger Loading Zones
Where permanently designated passenger loading zones other than
transit stops are provided, at least one accessible passenger loading
zone complying with technical requirements must be provided in every
continuous 100 feet (30 m) of loading zone space, or fraction thereof.
The Board revised the text of this scoping provision to clarify that
the passenger loading zones covered by this rule are those that are
permanently designated for passenger loading, other than transit stops.
This includes passenger loading zones permanently designated for ride
share. Often, permanent passenger loading zones in the public right-of-
way are comprised of a sidewalk cut out so that vehicles can pull out
of the traveled way to unload passengers. However, a permanently
affixed sign designating a passenger loading zone is sufficient to
bring the loading zone under coverage of this rule. Passenger loading
zones that vary with the time of day or the occupancy of a particular
retail space, such as valet stands that are provided only during
certain hours, are not considered permanently designated and are
therefore not subject to PROWAG.
R213 Stairs and Escalators
Where provided on pedestrian circulation paths, stairs must comply
with technical requirements at R408 and escalators must comply with
section 810.9 of Appendix D to 36 CFR part 1191 (ADA & ABA
Accessibility Guidelines). Stairs and escalators are not part of
pedestrian access routes, but where they are provided in the public
right-of-way, they must comply with technical requirements. Persons
with certain disabilities will find a short set of stairs more useable
than a long ramp, thus although these pedestrian facilities are not
part of the pedestrian access route, it is nonetheless important that
they conform to accessibility requirements.
In the final rule, the Board substituted the word ``stairs'' for
``stairways'' for consistency with the term used in the requirements of
36 CFR part 1191 (ABA & ADA Accessibility Guidelines), and to clarify
that a single stair is subject to the requirements of PROWAG.\11\ In
response to technical assistance inquiries made to the Board over the
years since the proposed rule was published, the Board has added a
definition for ``stair'' in R104.3 to clarify that a curb is not a
stair.
---------------------------------------------------------------------------

\11\ Section 504 of Appendix D to 36 CFR part 1191 (ABA & ADA
Accessibility Guidelines) is entitled ``Stairways,'' however the
terms ``stair'' or ``stairs'' are used throughout the text of the
requirements.
---------------------------------------------------------------------------

R214 Handrails
Wherever handrails are installed on pedestrian circulation paths,
including on stairs, they must comply with technical requirements at
R409. A few commenters expressed confusion over where handrails must be
installed. PROWAG requires handrails in two places: on ramp runs with a
rise greater than 6 inches (150mm) (R407.8) and on stairs (R408.8). The
Board has taken care to ensure that the distinction between ramps
requiring handrails and other sloped surfaces not requiring handrails
is clear in the final rule. The final rule text clarifies that a
sidewalk or other pedestrian circulation path is not subject to the
requirements for ramps, including the requirement for handrails, unless
its grade exceeds the allowable specifications of R302.4 (R407.1).
Jurisdictions may install handrails in places other than ramps and
stairs at their own discretion. Wherever handrails are installed in the
public right-of-way, they must conform to the technical requirements of
R409 regardless of whether they are required by PROWAG or have been
placed voluntarily.

D. Chapter 3: Technical Requirements

R301 General
The technical requirements contain accessibility design criteria
and apply as specified in the scoping provisions of Chapter 2 or where
referenced by another technical requirement in Chapter 3 or 4. These
technical requirements were developed specifically for pedestrian
facilities in the public right-of-way.
R302 Pedestrian Access Routes
The technical requirements for pedestrian access routes at R302 are
intended to provide a continuous path throughout the pedestrian
facilities of a

[[Page 53625]]

public right-of-way that is accessible to persons with disabilities.
These technical requirements include clear width, passing spaces,
grade, cross slope, and surface characteristics. The technical
requirements as proposed in the NPRM were adapted from the technical
requirements for accessible routes for buildings and facilities at 36
CFR part 1191, Appx. A 206. Based on careful consideration of the many
comments received in response to the proposed and supplemental proposed
rules, the Board has modified several of the pedestrian access route
technical provisions for consistency with the public right-of-way
context and for clarity of the requirements.
In the final rule, the Board eliminated the list of components of
pedestrian access routes that appeared in NPRM R302.2. The Board
concurred with a local government commenter who opined that each
facility included in this list should have scoping in Chapter 2. The
Board revised R203 to provide scoping for each pedestrian facility, and
then determined that the list of facilities with associated technical
provisions at NPRM R302.2 was duplicative of the revised section R203.
Further, the Board concluded that the list at NPRM R302.2 added to the
confusion regarding the concept of a pedestrian access route in the
public right-of-way.
As explained above in the discussion of R203, pedestrian access
routes in the public right-of-way function differently than accessible
routes in buildings and on sites. Accessible routes in buildings and on
sites are required to connect accessible facilities and elements to
other accessible facilities and elements and may consist of various
components. 36 CFR part 1191, Appx. D 206.2, 402.2. A pedestrian access
route in the public right-of-way runs through nearly every traversable
surface within the pedestrian facilities; thus, unlike the requirements
for a building, every new and altered traversable surface in the public
right-of-way, except for stairs and facilities that have been
specifically excepted, must comply with pedestrian access route
requirements. As a result of elimination of the proposed R302.2, the
sub-provisions of R302 have been renumbered.
Continuous Clear Width (R302.2)
The requirements for clear width of pedestrian access routes have
not changed from what the Board proposed, as modified by the SNPRM
(SNPRM R302.3). Specifically, a 48-inch (1220 mm) continuous clear
width is required for most portions of the pedestrian access route.
There are two exceptions: (1) places where a pedestrian access route
crosses medians and pedestrian refuge islands, which require 60 inches
of clear width or the width of the crosswalk (whichever is greater),
and (2) shared use paths where the clear width must extend the entire
width of the path. In response to commenter questions, the Board
revised the language of the provision to clarify that the required
width is measured exclusive of any curb. Also, in response to comments,
the Board has added a sentence clarifying that bollards are permitted
on shared use paths as long as the clear width of the pedestrian access
route is 48 inches (1220 mm) or wider (R302.2.2).
In response to the NPRM, three state DOTs and two utility companies
requested that the Board allow a reduction in the clear width of
pedestrian access routes to accommodate utility poles, traffic signal
poles, and similar obstructions. An additional 28 individual commenters
employed by utility companies requested that the Board revise the clear
width requirement to 36 inches. In alterations, including the addition
of a pedestrian circulation path to an existing right-of-way, where
existing physical constraints make compliance with the clear width
requirements technically infeasible, compliance with these requirements
is required to the maximum extent feasible. See R202.3. In that
circumstance, the jurisdiction must comply with the requirement to the
maximum extent feasible. Thus, these guidelines permit a jurisdiction
to reduce the clear width of a pedestrian access route to account for
existing utility infrastructure if the pedestrian circulation path
cannot be rerouted around the utility and the utility cannot reasonably
be relocated.
In the context of alterations, where there are existing physical
constraints, the width must still comply to the maximum extent
feasible; a pedestrian circulation path narrower than 36 inches may be
impassible by a person with a mobility device. In new construction of
undeveloped land, by contrast, the Board expects jurisdictions to
insist that utilities, traffic signals, and street furniture be located
to allow for full compliance with accessibility requirements. However,
as provided in DOJ's Title II regulations, full compliance with the
relevant accessibility requirements is not required in the context of
new construction where a public entity can demonstrate that it is
structurally impracticable to meet the requirements. Full compliance is
considered structurally impracticable only in those rare circumstances
when the unique characteristics of terrain prevent the incorporation of
accessibility features. 28 CFR 35.151.
Some commenters, including two disability rights advocacy
organizations, a pedestrian advocacy organization and a local
government DOT, requested that the Board expand the required clear
width to 60 or 72 inches. The Board acknowledges that its public
rights-of-way advisory committee recommended a width of 60 inches. See
Public Rights of Way Access Advisory Committee, Building a True
Community: Final Report, 13 (2001) available at <a href="https://www.access-board.gov/files/advisory-committee-reports/prow-report.pdf">https://www.access-board.gov/files/advisory-committee-reports/prow-report.pdf</a>. However,
that recommendation included several circumstances where a reduction in
width would be permitted. Id. The Board opted to require 48 inches
clear width with a requirement for 60 inch passing spaces as a minimum
accessibility requirement. Forty-eight inches allows room for a person
using a mobility device to traverse a pedestrian circulation path.
In response to the SNPRM, some commenters requested that the Access
Board add a minimum width for shared use paths. Jurisdictions determine
the width for a shared use path using criteria related to anticipated
user volumes. AASHTO recommends that two-directional shared use paths
should be 10 feet wide minimum. AASHTO, Guide for the Development of
Bicycle Facilities 5-3 (4th ed. 2004). Where shared use paths are
anticipated to serve a high percentage of pedestrians and high user
volumes, AASHTO recommends that the paths should be 11 to 14 feet wide
to enable a bicyclist to pass another path user travelling in the same
direction, at the same time a path user is approaching from the
opposite direction. Id. In certain ``very rare'' circumstances, AASHTO
permits the width of shared use paths to be reduced to 8 feet. Id.
The Board is concerned that stating a minimum width, such as the
width required for a pedestrian access route, may cause confusion that
would result in the installation of narrower shared use paths than what
would otherwise be used. Thus, the Board has maintained the requirement
stated in the SNPRM that technical requirements for pedestrian access
routes are applicable to the full width of shared use paths, whatever
the width.
In response to a local government commenter that expressed concern
that motorists would mistake a full-width curb ramp of a shared use
path for a driveway, and a state DOT requested an exception for
bollards that prohibit vehicular travel, the Board has added a

[[Page 53626]]

sentence to R302.2.2 clarifying the obstructions such as bollards are
permitted on shared use paths as long as the clear width of the
pedestrian access route is not reduced to less than 48 inches (1220
mm).
One local government commenter sought clarification regarding the
applicable clear width for a path where bicyclists and pedestrians
travel on separate but adjacent paths. A state's department of
recreation asserted that for pedestrian paths with adjacent equestrian
paths, the requirements should apply only to the pedestrian portion of
the path. Whether a particular pedestrian facility should be considered
a shared use path or not will be determined by the specific
characteristics of the path. The question is whether there is a shared
use path, or a pedestrian circulation path and an adjacent bike path or
equestrian path.
If there is a detectable separation between the pedestrian portion
of the path and the bike or equestrian portion of the path, then it may
not actually be a shared use path, but rather two distinct facilities
in close proximity.
Passing Spaces (R302.3)
Passing spaces must be provided at intervals of 200 feet (61 m)
maximum where the clear width of the pedestrian access route is less
than 60 inches (1525 mm). The passing spaces, which are 60 inches by 60
inches, are provided to allow sufficient space for two persons in
wheelchairs to pass each other. Pedestrian access routes and passing
spaces may overlap. In response to the NPRM, a utility company
expressed concern about passing spaces being added to a pedestrian
access route near an at-grade rail crossing where typically pedestrians
would be channelized into the crossing. Passing spaces must be added at
intervals no greater than 200 feet, but jurisdictions have flexibility
to place some passing spaces at shorter intervals to ensure that
specific areas are avoided.
A local government commenter requested clarification as to what
length of a pedestrian circulation path would need to be altered to
trigger the requirement for a passing space. As this is a question
regarding how the technical requirements will be enforced, the Board
notes that USDOT and DOJ may provide further specifics on this issue.
Grade (R302.4)
The grade of a pedestrian access route is the running slope of the
route in the direction of pedestrian travel. Grade is the vertical
change in elevation over the horizontal distance covered and is
expressed as either a ratio or, when dividing these two numbers, as a
percent. The grade of pedestrian access routes must comply with the
specifications corresponding to the location of the pedestrian access
route, except for the grade of curb ramps and blended transitions, and
ramps, which must comply with the grade specifications of their
respective technical requirements (R304, R407).
Where pedestrian access routes are contained within a street or
highway right-of-way, the grade of the pedestrian access route shall
not exceed 1:20 (5.0%). An exception permits the grade of the
pedestrian access route to not exceed the grade established for the
adjacent street or highway, where the grade established for that
adjacent street or highway exceeds 1:20 (5.0%) (R302.4.1). However,
where pedestrian access routes are contained within crosswalks, a
maximum grade of 1:20 (5.0%) is required (R302.4.3). This is consistent
with AASHTO guidance, which recommends that the sidewalk grade follow
the grade of adjacent roadways, and also recommends maximum cross
slopes for roadways. See AASHTO, A Policy on Geometric Design of
Highways and Streets 4-7 (7th ed. 2018); see also AASHTO, Guide for the
Development of Bicycle Facilities 5-16 (4th ed. 2012). Where pedestrian
access routes are not contained within a street or highway right-of-
way, such as a shared use path that runs through either a separate
right-of-way or an easement on private land, a maximum grade of 1:20
(5.0%) is required (R302.4.2).
In response to comments from state and local government entities,
the Board restructured R302.4.1 (NPRM 302.5) to clarify that a
pedestrian access route within a highway right-of-way may be graded to
1:20 (5.0%), even where the grade of the adjacent street is less than
1:20 (5.0%). The Board has restructured this provision to provide a
general requirement of 1:20 (5.0%) maximum grade of the pedestrian
access route, with an exception stating that where the grade of the
adjacent street exceeds 1:20 (5.0%), the grade of the pedestrian access
route shall not exceed the grade of the adjacent street. In some
circumstances where the grade of the adjacent street is less than 1:20
(5.0%), compliance with the general requirement could result in a
pedestrian access route with a grade of 1:20 (5.0%) maximum being
steeper than the grade of the adjacent street if the grade of the
adjacent street is less than 1:20 (5.0%).
The Board also received comments from four state DOTs indicating
that their standard maximum for superelevation exceeds 5%. To address
this concern, the Board has added an exception for the grade of the
pedestrian access route within a crosswalk, which specifies that where
roadway design requires superelevation greater than 1:20 (5.0%) at the
location of a crosswalk, the grade of the pedestrian access route
within the crosswalk may be the same as the superelevation (R302.4.3).
In the SNPRM, the Board added a provision requiring compliance with
grade requirements to the ``extent practicable'' in both new
construction and alterations where compliance with grade requirements
for pedestrian access routes ``not practicable'' due to existing
terrain or infrastructure, right-of-way availability, a notable natural
feature, or similar existing physical constraints (SNPRM R302.5.2). The
Board explained that this provision was responsive to comments to the
Advance Notice of Proposed Rulemaking (ANPRM) on accessibility
guidelines for shared use paths indicating that physical constraints
may prevent full compliance with grade requirements.
The comments received in response to the SNPRM indicate that the
proposed language at SNPRM R302.5.2 did not provide additional clarity
or substantial flexibilities beyond what is already available through
other provisions and standards. The Board received comments from some
state DOTs and local governments detailing circumstances where the
grade of SUPs in their jurisdictions exceed 5% principally due to
underlying terrain. For example, one local government located in a
mountainous area noted that only 17% of the land within its
jurisdiction has a slope of 5% or less and indicated that its design
guidelines allow the grade of shared use paths to exceed 5% for short
sections where topographical constraints necessitate design
flexibility. A state DOT observed that the language of the SNPRM
created a ``grey area'' where jurisdictions would use engineering
judgement in determining whether compliance with the 5% maximum grade
was ``practicable'' due to existing terrain. An accessibility advocacy
organization commented that accessibility standards should be applied
``100 percent'' and only scaled back where existing site conditions
warrant.
Upon consideration of the comments and further reflection and
research, the Board has concluded that the proposed provision at SNPRM
R302.5.2 specifically allowing the grade of the pedestrian access route
to comply with grade requirements to the ``extent

[[Page 53627]]

practicable'' \12\ where compliance is ``not practicable'' is not
needed for the following reasons.
---------------------------------------------------------------------------

\12\ As explained in the Major Issues section above, to improve
clarity of the final rule text the Board has removed the word
``practicable'' in favor of ``feasible,'' which is used in the 2004
ABA and ADA Accessibility Guidelines.
---------------------------------------------------------------------------

First, the Board notes that the Volpe Center, which assessed the
costs of compliance with this provision, observed that the majority of
shared use path miles cataloged in available documentation are built on
abandoned or converted railroad track beds, and thus have a grade of
less than 1:100 (1.0%) due to their railroad origins. See FRIA at 66.
Further, the Board notes that the grade of shared use paths built
within a highway right-of-way may match the grade of the adjacent
street if it exceeds 1:20 (5.0%) (R302.4.1 Exception). In addition,
AASHTO advises that the grade of a shared use path in an independent
right-of-way should not exceed 5%. See AASHTO, Guide for the
Development of Bicycle Facilities 5-16 (4th ed. 2012). Consequently,
the majority of shared use paths will meet the technical requirements
for the grade of pedestrian access routes at R302.4.
Second, the Board notes that most shared use paths are built on
existing rights-of-way and thus considered alterations under the final
rule. See FRIA at 66. As explained above, ``added'' pedestrian
facilities were required to fully comply with technical requirements as
``new construction'' under the proposed rule; however, under the final
rule pedestrian facilities added to existing, developed rights-of-way
are alterations. See 104.3. Section R202.3 of the final rule allows a
regulated entity to comply with a requirement to the maximum extent
feasible where the requirement is technically infeasible due to
existing physical constraints. Section R202.3 specifically lists
underlying terrain, underground structures, adjacent developed
facilities, drainage, and the presence of a significant natural or
historic feature as examples of existing physical constraints that may
prevent compliance with a requirement.
For example, a state department of conservation and recreation
submitted a comment in response to the SNPRM requesting that the Access
Board allow new shared use paths to use the grade of the existing
facility that they will be built on, such as a fire road or abandoned
railroad that would serve as a trail bed. Under the final rule, the
construction of shared use paths on existing facilities such as these
are alterations, and compliance would be expected to the maximum extent
feasible where existing physical constraints make compliance
technically infeasible (see R202.3).
Second, with respect to newly constructed shared use paths not
within a highway right-of-way, the Access Board observes that DOJ
regulations implementing accessibility requirements under Title II of
the ADA state that full compliance with the relevant accessibility
requirements is not required in the context of new construction where a
public entity can demonstrate that it is structurally impracticable to
meet the requirements. 28 CFR 35.151. While under DOJ's regulation full
compliance is considered structurally impracticable only in those rare
circumstances when the unique characteristics of terrain prevent the
incorporation of accessibility features, the comments received in
response to the SNPRM indicate that the main impediment to full
compliance with grade requirements is the underlying terrain. DOJ and
USDOT may elect to provide additional information regarding the unique
characteristics of terrain that would make compliance with grade
requirements structurally impracticable.
In sum, the Board has eliminated SNPRM R302.5.4 from the final rule
as unnecessary in light of other available flexibilities to address
circumstances where the characteristics of the underlying terrain
prevent full compliance with the technical requirements for grade.
In the final rule, the Board has also eliminated a provision that
provided flexibilities for instances where compliance with grade
requirements is precluded by laws intended to preserve threatened or
endangered species, the environment, or archeological, cultural,
historical, or significant natural features (SNPRM R302.5.5). This
provision was modeled after a provision in the Board's supplemental
rulemaking under the ABA for Federal outdoor areas. 36 CFR part 1191,
Appx. D 1019.1. Upon further consideration, the Board has concluded
that while this exception was suitable for recreational trails in
National Parks and other Federal lands, is not appropriate for the
construction of transportation facilities, including shared use paths,
which should be designed to prioritize equitable transportation for
all, and are already subject to environmental review.
Cross Slope (R302.5)
Cross slope is the slope perpendicular to the direction of
pedestrian travel (see R104.3). On a sidewalk, the cross slope is
measured perpendicular to the curb line or edge of the street or
highway. Excessive cross slope impedes travel by pedestrians who use
wheeled mobility devices, since energy must be expended to counteract
the perpendicular force of the cross slope. Excessive cross slope makes
it more difficult for pedestrians who use wheelchairs to travel on
uphill slopes and to maintain balance and control on downhill slopes.
Excessive cross slope also negatively affects pedestrians who use
braces, lower limb prostheses, crutches, or walkers, as well as
pedestrians who have gait, balance, or stamina impairments.
A maximum cross slope of 1:48 (2.1%) is specified for pedestrian
access routes, except for pedestrian access routes contained within
certain crosswalks. This is the same cross slope specified for
accessible routes in buildings and facilities. 36 CFR part 1191, Appx.
D 403.3. In exterior environments, this cross slope is adequate to
allow water to drain off paved walking surfaces.
The Board has added an exception to this general rule to clarify
that the portion of a pedestrian access route within a street that
connects an accessible parallel parking space to the nearest crosswalk
as specified in R310.2.2 is not required to comply with cross slope
requirements.
In crosswalks, the slope of the roadway is taken into consideration
because the grade or running slope of the roadway perpendicular to the
direction of pedestrian travel will comprise the cross slope of the
crosswalk. The NPRM specified 5 percent maximum cross slope for
pedestrian access routes contained within pedestrian street crossings
``without yield or stop control'' (NPRM R302.6.1). The purpose of
allowing a steeper cross slope at these crosswalks is to avoid a jolt
to vehicles at the change of grade where vehicles do not need to slow
to a yield or stop at a crossing.
In an advisory that accompanied the proposed rule text, the Board
indicated that a pedestrian street crossing ``without yield or stop
control'' included intersections with a traffic signal designed for the
green phase. In response to the NPRM, several commenters indicated that
the meaning of ``without yield or stop control'' was unclear. The Board
concurs with these commenters, and in the final rule has provided more
specific requirements for different types of approaches.
In R302.5.2 of the final rule, the Board breaks down the cross
slope for pedestrian access routes contained within a crosswalk.
Specifically, the Board addresses crosswalks where the

[[Page 53628]]

intersection approach has a stop or yield control device such as a stop
or yield sign or a flashing red or yellow light (R302.5.2.1);
crosswalks at uncontrolled intersection approaches where there is no
indication that traffic must slow or stop (R302.5.2.2); and crosswalks
at intersection approaches with a traffic control signal or pedestrian
hybrid beacon, which have phases where traffic need not slow to cross
the intersection, such as when the traffic signal is green or when the
pedestrian hybrid beacon is not activated (R302.5.2.3).
The cross slope of the pedestrian access route within a midblock
crosswalk or a crosswalk at a roundabout is permitted to be the same as
the grade of the street that it crosses (R302.5.2.4). The Board added a
reference to crossings at roundabouts to clarify that these crosswalks,
which do not occur at traditional intersections, operate similarly to
midblock crossings.
In response to the NPRM, the Board received numerous comments on
the topic of cross slope, which are addressed above in the Major Issues
section. The Board has assessed the costs of compliance of R302.5.2 in
the FRIA. See FRIA at 114.
Surfaces (R302.6)
The walking surfaces of pedestrian access routes, elements, and
spaces that are required to be accessible shall be stable, firm, and
slip resistant (R302.6). This is the same requirement as the proposed
rule (NPRM 302.7); in the final rule, the Board made edits for clarity.
The NPRM contained a provision regarding vertical alignment of
surfaces, which was intended to communicate that adjacent surfaces,
such as pavers, portions of sidewalk, or other pedestrian facilities
and elements within the pedestrian access route, be on the same plane.
The provision further required grade breaks to be flush (i.e., without
a gap between them), and stated requirements for at-grade rail
crossings. Commenters mostly expressed confusion regarding the purpose
of this provision. In the final rule, the Board has removed most of
this provision, leaving only the requirement that grade breaks be flush
(R302.6.1). The Board determined that the proposed requirement for
planar surfaces was not needed in light of requirements for grade
(R302.4), cross slope (R302.5) and changes in level (R302.6.2). The
requirements for at-grade rail crossing surfaces have been consolidated
at R302.6.4.
Changes in Level (R302.6.2)
In the proposed rule, the Board used the term ``vertical surface
discontinuities'' to describe what is referred to as ``changes in
level'' in the 2004 ABA and ADA Accessibility Guidelines. See NPRM
R302.7.2; see also 36 CFR part 1191, Appx. A 303. In response to the
NPRM, commenters suggested that this section be revised for better
consistency with the 2004 ABA and ADA Accessibility Guidelines. The
Board concurred with this suggestion and has updated the language at
R302.6.2 to address ``changes in level.'' The term ``surface
discontinuities'' has been eliminated from the guidelines.
The term ``changes in level'' as used in these guidelines refers to
an abrupt increase or decrease in the level of the walking surface of a
pedestrian access route, such as occurs when one sidewalk panel is
slightly higher than an adjacent panel. It is measured relative to the
plane of the walking surface; it does not take into consideration the
grade of the pedestrian access route. The text of this provision has
been revised for clarity. The requirements state that changes in level
up to \1/4\ inch (6.4 mm) may be vertical. Changes in level between \1/
4\ inch (6.4 mm) high and \1/2\ inch (13 mm) high must be beveled.
The Board has also included an additional clarification that
changes in level greater than \1/2\ inch (13 mm) up to 6 inches (150
mm) must have a slope no greater than 1:12 (8.3%), and changes in level
greater than 6 inches (150 mm) must comply with the requirements for
ramps at R407. The Board added these provisions in response to comments
and due to the many technical assistance inquiries seeking
clarification as to where in the public right-of-way pedestrian access
routes are to be treated as ramps.
In the public right-of-way, changes in level of 6 inches (150 mm)
or less are not subject to the ramps technical requirements and thus do
not require handrails, edge protection, or landings. This clarification
addresses local government commenters' concerns about the difficulty of
limiting changes in level to \1/2\ inch (13 mm) in the public right-of-
way due to soil movements. The Board acknowledges that sidewalk panels
shift over time due to tree root growth, soil movement, and other
factors. The Board anticipates that the clarified provisions will help
jurisdictions better plan for sustained compliance through regular
maintenance programs.
The Board acknowledges comments from two state government
commenters that requested a requirement that utility covers, vault
frames, and gratings not be located on curb ramps in new construction.
The Board does recommend that these items be located elsewhere in new
construction; however, these items are permitted if installed
consistent with the requirements.
Horizontal Openings (R302.6.3)
Horizontal openings in ground surfaces, for example, holes in
gratings or gaping cracks in pavement, must not be so large such that a
sphere larger than \1/2\ inch in diameter may pass through. The Board
revised the language of this provision slightly from the proposed NPRM
302.7.3 to clarify that holes in gratings and joints are examples of
horizontal openings, not the only horizontal openings covered by
PROWAG.
In general, elongated openings are permitted perpendicular to the
dominant direction of travel. In the final rule, in response to
comments from a state DOT and a pedestrian advocacy organization, the
Board has clarified that elongated openings are not permitted where
pedestrian access routes intersect as a single dominant direction of
travel cannot be identified in that circumstance.
The Board notes the concern raised by one commenter that one
northern state uses 1-inch-wide horizontal openings on stairs to
minimize snow and ice build-up, and acknowledges that newly constructed
and altered stairs in this jurisdiction may require additional
maintenance to clear snow and ice. However, equity requires that
persons with disabilities in northern climates also have access to
pedestrian facilities. A cane or crutch tip may become trapped in a
horizontal opening wider than \1/2\ inch.
In response to the NPRM, a local government commenter indicated
that the horizontal openings requirements may conflict with water
drainage in existing rights-of-way. As discussed above, alterations in
existing rights-of-way are to comply with technical requirements to the
maximum extent feasible where existing physical constraints make
compliance with applicable requirements technically infeasible.
Surfaces at Pedestrian At-Grade Rail Crossings (R302.6.4)
In the final rule, the Board has consolidated at R302.6.4 all of
the surface requirements for pedestrian access routes at pedestrian at-
grade rail crossings. The surface alignment requirement (R302.6.4.1)
has not changed from the proposed rule, except

[[Page 53629]]

that it was moved from the proposed vertical alignment section (NPRM
R302.7.1), which was eliminated. Where a pedestrian access route
crosses rails at grade, the pedestrian access route surface must be
level and flush with the top of rail at the outer edges of the rails,
and the surface between the rails must be aligned with the top of rail.
This requirement keeps the surface of these crossings as consistent as
possible except for the flangeway gap.
Flangeway gaps are the horizontal opening immediately adjacent to
the rails that allow passage of train wheel flanges. Flangeway gaps,
like other horizontal openings in a walking surface, can pose a
potential hazard to pedestrians with certain disabilities because they
can entrap wheelchair casters, walker wheels, and crutch or cane tips.
The requirements for flangeway gaps have been set at the narrowest
dimension that allows a train to safely traverse a pedestrian crossing.
There are two different dimensions for flangeway gaps: 3 inches maximum
for crossings located on railroad track subject to Federal Railroad
Administration (FRA) safety regulations at 49 CFR part 213, and 2 and
\1/2\ inches maximum for all others (R302.6.4.2). In the proposed rule,
the Board had described these two categories as ``freight rail track''
and ``non-freight rail track,'' but revised the description for clarity
at the request of the FRA.
In response to the proposed rule a public utilities commission
requested that the Board include a specification for field side gaps
(i.e., gaps on the outer side of the rail). An additional specification
is not needed for field side gaps because the general requirement for
horizontal openings (\1/2\ inch) at R302.6.3 applies. A railroads
association commented that while a 3-inch gap is acceptable for new
construction, flangeway gaps widen over time. The Board acknowledges
that, similar to many accessibility requirements, maintenance to
sustain compliance may be required.
The same railroads association also commented that a 2 and \1/2\
inch gap is not sufficient for Amtrak and other commuter railroads.
However, those railroads generally operate on track subject to FRA
safety regulations at 49 CFR part 213, and thus would be subject to the
3-inch maximum, not the 2 and \1/2\ inch maximum. A state DOT
questioned whether the maximums set would cause derailments, but did
not provide any factual basis for this concern. An association of
transportation engineers requested an exception where specific freight
safety issues are identified. The association did not provide further
information regarding the specific freight safety issues that would be
presented by the 3-inch (75 mm) maximum requirement. The Board notes
that this maximum is applicable only at pedestrian crossings; in
alterations, compliance is expected to the maximum extent feasible
where existing physical constraints make compliance with applicable
requirements technically infeasible (R202.3).
A public utilities commission requested a requirement for flange
filler. In the NPRM, the Board asked a question seeking information or
research on materials and devices that fill the flangeway gap but
received no responses. At the time that the NPRM was published, the
Board anticipated that significant research would be undertaken on this
topic. The Board acknowledges that flangeway gap fillers are used at
some light rail station stops; however, there has not been sufficient
research for the Board to conclude that a national mandatory
requirement for flangeway gap fillers at grade-level crossings is
appropriate. The Board intends to encourage further research on this
topic, and may revisit a requirement for flangeway gap fillers in the
future.
R303 Alternate Pedestrian Access Routes
The proposed rule did not contain technical provisions for
alternate pedestrian access routes. Rather the scoping incorporated by
reference specific provisions of the MUTCD. In response to commenter
concerns, and as described above, the Board has eliminated references
to the MUTCD and included technical requirements directly in the rule
text.
In proposed section NPRM 205, the Board indicated that alternate
pedestrian access routes must comply with sections 6D.01, 6D.02 and
6G.05 of the MUTCD (2009 Edition). The proposed rule further noted that
where provided, pedestrian barricade and channelizing devices were
required to comply with sections 6F.63, 6F.68, and 6F.71 of the
MUTCD.\13\
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\13\ The Board acknowledges that some of the MUTCD provisions
that were incorporated by reference contained standards that are not
relevant to accessibility and therefore beyond the scope of this
regulation. Accordingly, the substance of those non-relevant
provisions of the MUTCD is not included in this final rule.
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The guiding principle with respect to accessibility for MUTCD
alternate pedestrian access routes is found in MUTCD 6D.02 paragraph 3,
which states, ``When existing pedestrian facilities are disrupted,
closed, or relocated in a [temporary traffic control] zone, the
temporary facilities shall be detectable and include accessibility
features consistent with the features present in the existing
pedestrian facility.'' In section R303, the Board has specified the
required accessibility features of alternate pedestrian access routes
to ensure that they are detectable and contain the basic accessibility
features of the closed route without being overly burdensome.
Signs (303.2)
The final rule requires that jurisdictions provide signs
identifying alternate pedestrian

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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.