36 CFR Part 1191 ABA Accessibility Guidelines, Outdoor Developed Areas - Preamble

Exceptions When Conditions Do Not Permit Full Compliance

The proposed rule would have permitted exceptions to only certain provisions in the technical requirements when certain conditions do not permit full compliance. The final rule restates the conditions as shown in the Table 2 under the Executive Summary, and permits exceptions based on the conditions to any provision in the technical requirements for tent pads and tent platforms, camp shelters, viewing areas, outdoor recreation access routes, trails, and beach access routes.⁷ The final rule also permits exceptions based on the conditions to the provisions for clear ground space at outdoor constructed features in alterations.

The proposed rule would have required compliance “to the maximum extent feasible” when an exception is used. The final rule requires compliance “to the extent practicable” when an exception is used. This language is more in keeping with the regulatory negotiation committee report, which considered the term “feasible” to mean “reasonably-doable.” The regulatory negotiation committee report used the example of constructing a portion of a trail in a steeply sloped area, where complying with the provision for running slope would require extensive cuts and fills that would be difficult to construct and maintain; cause drainage and erosion problems; and have a severe impact on the environment. In this example, the portion of the trail constructed in the steeply sloped area is permitted to comply with the provision for running slope to the extent practicable.

When an exception to a specific provision in the technical requirements is used on a portion of a trail or beach access route, the final rule requires the federal agency to document the basis for its determination to use the exception and to maintain the documentation in the records for the trail or beach project in the event that a complaint is later filed alleging that the trail or beach access route does not fully comply with the applicable technical requirements. When investigating the complaint, we will request the federal agency to provide the documentation if the federal agency claims that it used an exception based on the conditions.