Dear Mr. Botten;
The Topeka Independent Living Resource Center is a human and civil rights organization with a mission to advocate for justice, equality and essential services for a fully integrated and accessible society for all people with disabilities. For over 26 years, we have been involved in promoting access in all aspects of community life, including environmental access.
Our agency has worked with our state to complete access surveys and recommend ways to improve access in recreational use areas in local, state, and Corps of Engineers parks and wildlife preserves throughout Kansas. We are proud of the work that has been done so far in the state of Kansas to ensure the civil rights of all citizens through addressing access barriers and improving access to natural parks and activities for all people. The removal of barriers and obstacles and the promotion of equal access to all recreational use areas should be a primary consideration in the improvement, alteration and expansion of recreational use areas. As our comments reflect, exceptions or exemptions to plans and practices that promote access for all users should be authorized individually and infrequently.
We appreciate the opportunity to participate in the Access Board process by offering the following responses to the questions presented.
Access Board Questions
Question 1: The Board acknowledges the difficulty in reaching consensus on proposed accessibility guidelines for newly constructed and altered trails and appreciates the hard work of the regulatory negotiation committee. Throughout the committee’s deliberations, several alternative approaches to addressing trail accessibility were considered. Some of the approaches considered and rejected included applying different provisions to “front” country and “back” country trails; general exemptions from accessibility in some areas; different provisions based on levels of development; and requiring only a certain percentage of new trails to be accessible. A summary of the committee’s deliberations on these approaches is included in the preamble under the section on trails (T203). The committee reached consensus on the approach presented in this proposed rule. Should the approaches that were rejected be reconsidered? Are there other approaches the Board should consider? If so, please provide information on how the alternative approaches would be applied and their rationale.
All new trails in urban areas designed primarily for pedestrian use should be required to be accessible, where ever readily achievable, even when connecting to an existing inaccessible trail. This should also apply to all other park-like settings where features are provided to facilitate use, comfort and convenience.
Question 2: The proposed guidelines include conditions for exceptions from the technical provisions (T302). Condition 4 permits specific exceptions to the technical provisions for trails where compliance would not be feasible due to terrain or prevailing construction practices. The term “not feasible” is used in Condition 4 to specify what is “reasonably do-able.” It does not refer to the technical infeasibility or possibility of full compliance with the technical provisions. Should the word “practicable” also be used in this condition? That is, are there situations where it would be “reasonably do-able” to comply with the guidelines, but it is not “practicable” to do so? Should there be more guidance for determining what is or is not feasible or practicable in applying Condition 4? If so, what type of guidance should be provided? Should the guidance give specific examples of situations where certain provisions such as maximum running slope may not be feasible or practicable for a portion of a trail?
The term “readily achievable” is the term embraced throughout the Americans with Disabilities Act regulations and guidelines. Rather than creating new terms with undefined meanings, we would encourage the use of existing terms and the associated regulatory and legal interpretations associated with the term “readily achievable” rather than some other term to describe the rare situations where access cannot be incorporated.
Question 3: A newly constructed trail that complies with the technical provisions for trails would be considered an accessible trail and is required to display a symbol designating the trail as accessible. The committee did not reach consensus on what symbol should be displayed on the sign. Some suggested that the International Symbol of Accessibility that is used to designate accessible features in buildings was not appropriate to designate accessible trails because the technical provisions for trails differ from the technical provisions for accessible routes in buildings, and using the International Symbol of Accessibility for accessible trails may convey the message that accessible trails meet the same technical provisions as accessible routes in buildings. Others suggested that the International Symbol of Accessibility be paired with the International Hiker Symbol. Comments on this suggestion or other suggested symbols are welcome.
The committee also recommended that trail signs provide detailed information about the trails’ running slope, width, cross slope, and other characteristics. This would enable people to make informed decisions about using trails based on the characteristics of the trails. On the other hand, it was noted that this approach might result in signs that would be too elaborate and complicated and some hikers might not be able to distinguish between the various characteristics to make appropriate choices. The Board requests comment on this issue. Information is provided in the advisory note to T321.2 showing examples of signs and other details. Question 25 also requests further comment on trail signage.
Barring the creation of another new access symbol for accessible trails, a sign with both the International Symbol of Accessibility and the International Hiker Symbol seems like the simplest and most unambiguous way to designate an accessible hiking trail. Having information on trail signage describing slope, surface and other trail conditions on trails, including those that do not comply with the technical provisions in T303, is an excellent idea; this information will be very helpful to all hikers and trail users in evaluating the difficulty of terrain and possible concerns.
Question 4: The committee proposed that a beach access route be required where pedestrian routes are provided to or along the edge of a beach. Several exceptions to this general requirement are included in the proposed rule. Section T205.2.3 Exception 6 provides an exception for pedestrian routes that are developed along the edge of an existing beach, such as a boardwalk. Under this exception, beach access routes would not be required if the pedestrian route or boardwalk is elevated 6 inches or higher above the beach surface. The Board is concerned that this exception will not provide sufficient access for persons with disabilities, especially where lengthy elevated boardwalk systems are provided. In view of this, the Board requests comments on whether a higher threshold than 6 inches should be used.
Access is a civil right, and should be the expectation and requirement for all public accommodations, including beach access routes and boardwalks. Setting a standard threshold, especially one as low as 6 inches, turns the assumption of access on its head and invites developers to unnecessarily limit access by simply building walks over the 6-inch threshold. The better policy would be to require beach access, and use the existing standards around what is and is not “readily achievable” to create case-by-case exceptions.
Question 5: The proposed rule requires beach access routes to be a minimum of 36 inches in width. Should this width be increased? When beach access routes are less than 60 inches in width, a passing space of 60 inches by 60 inches would be required every 200 feet. Should the passing space be larger? Should passing spaces be provided more frequently than every 200 feet? The Board is interested in information from designers or operators who have provided beach access routes.
The adoption of a 36 inch requirement should be a minimum. In internal structures, the generally accepted hallway widths are 48 inches, and the turn diameter is 60 inches. Ideally, for access for all types of wheelchairs and scooters, a 48 inch minimum would accommodate larger widths and sizes of chairs.
Question 6: The proposed rule requires beach access routes to extend to the water. The Board requests comments on whether beach access routes should connect managed elements and spaces often located on a beach such as beach volleyball courts, first aid stations, beach rental equipment facilities, and concession stands.
Access is a civil right, and should be the expectation and requirement for all public accommodations, including managed elements and spaces.
Question 7: The proposed rule (T308.3) requires the height of the cooking surface of a grill to be 15 inches minimum to 34 inches maximum above the floor or ground surface. Is the 15 inch minimum height too low? If so, what dimension should be used and why?
Although ADAAGs allow for forward reach to be as low as 15 inches, 15 inches is the number used in reference to issues such as access to refrigerator shelves, not using a cooking surface. A more practical range would be 32 inches maximum to 20 inches minimum.
Question 9: Extensive information is included in the advisory note to T303.3 (Table A) on the degree of firmness and stability of a trail surface. The Board is seeking comment on whether the recommendations for the degree of surface firmness and stability should be based on the length of travel, the intended use, or the direction of traffic. For example, surfaces that are moderately firm or stable may be appropriate in areas where a cushioned surface is preferred (e.g., for a multi-use trail that includes equestrians).
The Board requests comment on the concept of having a range of requirements for what will qualify as firm and stable. For example, is it acceptable for a trail under .5 miles in length to be only “moderately” firm? Is it acceptable for a trail less than .1 miles in length to be only “moderately” firm and “moderately” stable? Further, is it appropriate to consider a surface firm if the wheel of a wheelchair sinks into it by .5 inch? And, is it appropriate to measure both firmness and stability by the same wheelchair penetration test? While this information is only advisory, the Board requests comments on whether it should be included in the advisory at all.
Advisory guidance should encourage the construction of trails to meet intended usage and purposes, while incorporating access to the greatest extent possible. Using a “wheelchair sink” standard seems subjective to the point of being non-descriptive.
On “Table A Calculation and Classification” on page 17, the middle stability classification should be Moderately Stable, not Very Stable.
Question 10: Should the number of required accessible outdoor elements such as picnic tables, fire rings, and benches be increased from the scoping provisions in Chapter T2? In most cases, 50% of the elements provided are required to be accessible. Of those elements required to be accessible, 40% are also required to be connected by an outdoor recreation access route. The Board is interested in comments and alternatives to the scoping provisions for these elements.
Access is a civil right, and should be the expectation and requirement for all public accommodations. As the Board considers alternatives to the scoping provisions for these elements, please consider these current provisions as the minimum with the possibility of additional requirements in certain areas.
Question 12: The committee recognized that the distinction between alterations and maintenance activities is as critical to picnic areas, campgrounds, and beaches as it is to trails. Although the previous discussion specifically refers to trails, the examples could be extrapolated to include other outdoor elements. How should alteration and maintenance activities be defined for picnic areas, campgrounds, and beaches, including outdoor recreation access and beach access routes?
Similar standards to those adopted in other contexts can be relied upon to create the line between routine maintenance and alteration to outdoor recreational areas. As with building repairs and alterations, a standard which relies on a percentage of overall budgeted amounts or a percentage of facilities affected by single projects could create the criteria for determining the difference between maintenance activities and the types of alterations that would require the incorporation of greater access features where readily achievable.
Addressing the issue from this perspective allows an overall vision of the work being done, the nature of the recreational use area, and the types of alterations which would be readily achievable to create access. Some activities considered maintenance or repair should rightfully be considered alterations. There are instances where repairing small areas in the trail surface and filling wash outs is sufficient to make at least a substantial portion of a trail accessible. Likewise if an inaccessible bridge near a trailhead is the primary barrier to making the rest of the trail accessible and the deck on this otherwise functioning bridge needs to be replaced, common sense would dictate that the new deck and the connecting portions of the trail should be accessible.
Question 14: Where trails are not accessible, the committee could not agree on whether elements such as benches, picnic tables, or toilet rooms located on a trail should be required to be accessible. For example, an element such as a picnic table may be located on a trail too steep to be accessible. The committee considered how future and existing technology will allow assistive devices to get over more difficult terrain. The committee discussed options to minimize scoping (e.g., one of each element) requirements or limit the requirement to certain elements such as sanitary facilities. Should elements located on inaccessible trails be required to be accessible?
Access is a civil right, and should be the expectation and requirement for all public accommodations, in all aspects of public accommodation. Elements located on inaccessible trails should be required to be accessible. In the example given, the person with a disability may be picnicking with a group people and they could help them get to the picnic area. Changes in power mobility technology could make a trail that is too steep today usable by a person with the right kind of equipment in the future. Finally, access improves usability by all people, whether using wheelchairs or not. For example, parents with children in strollers can use cut-outs for children at tables.
Question 15: Comment is sought on the impact of constructing a beach access route every ½ mile along a new beach. If this distance is not appropriate, other specific distances are requested.
Access is a civil right, and should be the expectation and requirement for all public accommodations, including beaches and beach access routes.
Question 16: The committee outlined several exceptions to the application of the technical provisions for beach access routes in T305. Comment is sought about whether there are any other situations for which site infeasibility would preclude compliance with the technical provisions for a beach access route. If so, are there specific technical provisions (T305) where departures may be necessary due to site constraints?
Access is a civil right, and should be the expectation and requirement for all public accommodations, exceptions should be encompassed within the definitions of “readily achievable” as developed through the interpretive guidelines and authorities associated with the Americans with Disabilities Act. Exceptions should be determined on a case-by-case basis, rather than using broad exclusions.
Question 17: The committee considered beach sites where constructed parking spaces or a parking lot is provided adjoining the beach. Should the provision of constructed parking spaces adjoining the beach, trigger a beach access route? If so, should the trigger be based on the number of parking spaces or some other measure?
Access is a civil right, and should be the expectation and requirement for all public accommodations, including parking spaces and parking lots.
Question 19: Section T303.8 permits departure from the technical provisions for cross slope with open drainage structures. A cross slope up to 10 percent is permitted at the bottom of the open drain where the clear tread width is 42 inches minimum. Are open drainage structures the only drainage structures where cross slopes up to 10 percent should be permitted? If not, what other areas should be identified?
Question 20: The committee was unable to decide whether there should be exceptions from the technical provisions for outdoor recreation access routes based on the conditions in T302. Currently, departures from the technical provisions are permitted for specific elements, (e.g., picnic tables, camp sites) but not for the outdoor recreation access routes that connect those elements. Should exceptions be permitted for specific elements on the outdoor recreation access routes leading to those elements?
Access is a civil right, and should be the expectation and requirement for all public accommodations. No blanket exceptions should be permitted for access routes where departures have otherwise been granted, because notwithstanding the inability to reasonably achieve access in those elements, the recreational area may be enjoyed in other ways as long as it can be accessed.
Question 25: Some examples of proposed signs designating accessible trails are included in an advisory note. The committee did not reach a consensus on a particular sign. Comment is sought on these signs and other options. The proposed guidelines for trails require a sign on trails that meet the provisions and exceptions of T303.
See response to question 3.
Access is a civil right, and should be the expectation and requirement for all public accommodations. Guidelines and advisory guidelines should begin with the presumption of access, and narrowly craft the exceptions to this presumption.
The Exceptions to Alterations in T203.2 are either too broad or poorly defined. In the example given of a new bridge replacing stepping stones on an existing path it should be made clear that the portions of the trail on either side of the new accessible bridge need to be accessible as well.
Thank you for the opportunity to provide feedback on the proposed regulations and guidelines for outdoor recreational areas. We look forward to continued work with the Access Board to promote an accessible society for all people, in all aspects of community life.
In justice and equality,
Topeka Independent Living Resource Center, Inc.
501 SW Jackson St., Ste. 100
Topeka, KS 66603-3300