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

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.

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

row@access-board.gov.

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.

•

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.

•

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.

•

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.

•

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.

•

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

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

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.

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 https://www.regulations.gov

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,

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.

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).

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.

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).

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 regulations.gov and on the Access Board's website,

www.access-board.gov.

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:

•

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.

•

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.

•

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.

•

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

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

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 https://www.ada.gov/doj-fhwa-ta.htm; 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 https://ada.gov/doj-fhwa-ta-supplement-2015.html.

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

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, § 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

www.regulations.gov.

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

www.regulations.gov.

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

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

www.regulations.gov.

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 https://onlinepubs.trb.org/onlinepubs/nchrp/nchrp_rpt_674.pdf. https://onlinepubs.trb.org/onlinepubs/nchrp/nchrp_rpt_674.pdf. https://onlinepubs.trb.org/onlinepubs/nchrp/nchrp_rpt_674.pdf.

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

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 https://onlinepubs.trb.org/onlinepubs/nchrp/nchrp_rpt_674.pdf.

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 https://www.rcocweb.org/DocumentCenter/Home/View/99

(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 https://safety.fhwa.dot.gov/intersection/roundabouts/fhwasa15069.pdf.

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 https://itre.ncsu.edu/wp-content/uploads/sites/2/2017/04/NCHRP-03-78b_Final-Guidelines.pdf; 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 https://www.trb.org/Main/Blurbs/175586.aspx.

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

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,

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 https://mutcd.fhwa.dot.gov/kno-history.htm.

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

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.

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,

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Transit Shelter, Transit Stop, Transitional Segment, and Vibrotactile.

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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:

• “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.

• “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).

• “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.

• “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:

•

Accessible:

The word “facility,” which is no longer a defined term, has been replaced with “pedestrian facility” and “element.”

•

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.

•

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.

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Cross Slope:

The word “grade” has been changed to slope, which reflects more typical usage.

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Curb Line:

The word “highway” was removed for clarity, as “street” sufficiently conveys the concept.

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Curb Ramp:

The edited definition clarifies that the words “parallel” and “perpendicular” are stated relative to the curb or street that curb ramps serve.

•

Element:

The word “pedestrian facility” has been substituted for “facility,” reflecting the substitution of defined terms, as described above.

•

Grade Break:

The term “running slope” has been substituted for “grade” for consistency in the way these terms are used throughout the rule text.

•

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.

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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.

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Pedestrian Circulation Path:

The word “travel” was removed in favor of the word “use” for clarity.

•

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.

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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.

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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

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.

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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.

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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.

•

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

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.

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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).

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Again, the goal, over time, is a continuous accessible pathway through all traversable facilities in the public right-of-way.

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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

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

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 https://www.fhwa.dot.gov/civilrights/programs/ada/doj_fhwa_ta.cfm; 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 https://ada.gov/doj-fhwa-ta-supplement-2015.html.

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

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

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

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

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

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 https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202210&RIN=3014-AA48.

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

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 an

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