36 CFR Part 1190, Proposed Accessibility Guidelines for Pedestrian Facilities in the Public Right-of-Way: Notice of Proposed Rulemaking (NPRM)

R202 Alterations and Elements Added to Existing Facilities (Section-by-Section Analysis)

The proposed guidelines apply to alterations and elements added to existing facilities. Alterations are changes to an existing facility that affect or could affect pedestrian access, circulation, or use (see R105.5). Alterations include, but are not limited to, resurfacing, rehabilitation, reconstruction, historic restoration, or changes or rearrangement of structural parts or elements of a facility. The Department of Justice and Department of Transportation may provide guidance on the meaning of the word “resurfacing” when they conduct rulemaking to include accessibility standards for pedestrian facilities in the public right-of-way in regulations implementing Title II of the Americans with Disabilities Act and Section 504. Comments requesting guidance on the meaning of the term “resurfacing” should be directed to the Department of Justice and Department of Transportation when they conduct rulemaking to include accessibility standards for pedestrian facilities in the public right-of-way in regulations implementing Title II of the Americans with Disabilities Act and Section 504.

Where elements are altered or added to existing facilities but the pedestrian circulation path to the altered or added elements is not altered, the pedestrian circulation path is not required to comply with the proposed requirements for pedestrian access routes. For example, if a new bench is installed on an existing sidewalk that has a cross slope exceeding 2 percent, the sidewalk is not required to be altered to reduce the cross slope because the bench is installed on the sidewalk. Advisory information recommends that, where possible, added elements should be located on an existing pedestrian access route. This provision is based on similar provisions in the 2004 ADA and ABA Accessibility Guidelines which do not require the circulation path to altered elements or spaces to comply with the requirements for accessible routes where the circulation path to the altered elements or spaces is not altered (see 202.3, Exception 1; and F202.3, Exception 1).

Where existing physical constraints make it impractical for altered elements, spaces, or facilities to fully comply with new construction requirements, compliance is required to the extent practicable within the scope of the project. Existing physical constraints include, but are not limited to, underlying terrain, right-of-way availability, underground structures, adjacent developed facilities, drainage, or the presence of a notable natural or historic feature.

The 2004 ADA and ABA Accessibility Guidelines (see 202.4 and F202.4) and the Department of Justice regulations implementing Title II of the Americans with Disabilities Act (see 28 CFR 35.151 (b)) include an additional requirement for facilities on sites whereby an alteration that affects or could affect the usability of or access to an area containing a “primary function” must be made so as to ensure that, to the maximum extent feasible, the “path of travel” to the altered area is accessible, unless the additional cost and scope of the alterations to provide an accessible “path of travel” are disproportionate to the cost of the alteration to the “primary function” area. The Department of Justice regulations define the terms “primary function” and “path of travel.” See 28 CFR 35.151 (b) (4) (i) and (ii). According to the Department of Justice regulations, a “primary function” is a major activity for which the facility is intended. “Primary function” areas include the dining area of a cafeteria, the meeting rooms in a conference center, as well as offices and other work areas in which the activities of the public entity using the facility are carried out. Mechanical rooms, boiler rooms, supply storage rooms, employee lounges or locker rooms, janitorial closets, entrances, and corridors are not “primary function” areas. Restrooms are not “primary function” areas unless the provision of restrooms is a primary purpose of the area (e.g., restrooms in highway rest stops). Alterations to windows, hardware, controls, electrical outlets, and signage are not alterations that affect the usability of or access to a “primary function” area. The Department of Justice regulations further state that a “path of travel” includes a continuous, unobstructed way of pedestrian passage by means of which the altered area may be approached, entered, and exited, and which connects the altered area with an exterior approach (including sidewalks, streets, and parking areas), an entrance to the facility, and other parts of the facility. An accessible “path of travel” may consist of walks and sidewalks; curb ramps and other interior or exterior pedestrian ramps; clear floor paths through lobbies, corridors, rooms, and other improved areas; parking access aisles; elevators and lifts; or a combination of these elements; and also includes the restrooms, telephones, and drinking fountains serving the altered area.

The Department of Justice regulations deem the additional cost of alterations to provide an accessible “path of travel” to the altered area disproportionate when it exceeds 20 percent of the cost of the alteration to the “primary function” area. See 28 CFR 35.151 (b) (4) (iii). When the additional cost of alterations to provide an accessible “path of travel” to the altered area is disproportionate, the Department of Justice regulations require the “path of travel” to be made accessible to the extent that it can be made accessible without incurring disproportionate costs (i.e., an amount equal to 20 percent of the cost of the alteration to the “primary function” area must be expended to provide an accessible “path of travel” to the altered area). See 28 CFR 35.151 (b) (4) (iv). A similar requirement is not included in the proposed guidelines because of the uncertainty how the terms “primary function” and “path of travel” as defined in the Department of Justice regulations for facilities on sites would apply to pedestrian facilities in the public right-of-way. Revising the definitions of “primary function” and “path of travel” to apply to pedestrian facilities in the public right-of-way will not necessarily result in additional accessibility. For example, if an area that contains a “primary function” is defined to include sidewalks, an accessible “path of travel” would be required to the altered sidewalks, which in effect would require the cost and scope of planned sidewalk alteration projects to be increased by 20 percent. Sidewalk alteration projects can be planned to take into account the additional 20 percent scope and cost of work. For example, if a 5 block sidewalk alteration project would be planned in the absence of a requirement for an accessible “path of travel” to the altered sidewalks, imposing a requirement for an accessible “path of travel” to the altered sidewalks could result in a 4 block sidewalk alteration project being planned and the additional 20 percent scope and cost of work would result in a 5 block sidewalk alteration project.

Transitional segments of pedestrian access routes must connect to unaltered segments of existing pedestrian circulation paths and comply with the technical requirements for pedestrian access routes to the extent practicable. Alterations must not decrease or have the effect of decreasing the accessibility of a facility or an accessible connection to an adjacent building or site below the requirements for new construction in effect at the time of the alteration.

Where the State Historic Preservation Officer or Advisory Council on Historic Preservation determines that compliance with a requirement would threaten or destroy historically significant features of a qualified historic facility, compliance is required to the extent that it does not threaten or destroy historically significant features of the facility. A qualified historic facility is a facility that is listed in or is eligible for listing in the National Register of Historic Places, or is designated as historic under state or local law (see R105.5)