05-3068. Forest Service Trail Accessibility Guidelines and Integration of Direction on Accessibility Into Forest Service Manual 2350

AGENCY:

Forest Service, USDA.

ACTION:

Notice of proposed interim directive; request for comment.

SUMMARY:

The Forest Service is proposing to issue an interim directive to guide its employees regarding compliance with the Forest Service Trail Accessibility Guidelines (FSTAG). The interim directive would ensure that new or altered trails managed for pedestrian use on National Forest System lands are developed to maximize accessibility for all people, including people with disabilities, while recognizing and protecting the unique characteristics of the natural setting of each trail. The interim directive, to be issued to Forest Service Manual 2350, Trail, River, and Similar Recreation Opportunities, would direct that these trails comply with the FSTAG and applicable Federal laws, regulations, and guidelines. The interim directive also would incorporate the definition of a wheelchair and clarify that a mobility device meeting this definition may be used anywhere foot travel is permitted. In addition, the interim directive would clarify existing internal agency procedures and policies related to the accessibility of trails.

The Architectural and Transportation Barriers Compliance Board (Access Board) is preparing to publish for public comment proposed accessibility guidelines for outdoor developed areas that would apply only to Federal agencies subject to the Architectural Barriers Act. The Forest Service will finalize the direction in this interim directive regarding compliance with the FSTAG when the Access Board finalizes its accessibility guidelines for outdoor developed areas. The final FSTAG would contain the Access Board's final accessibility guidelines for outdoor developed areas managed by Federal agencies, as supplemented by the Forest Service.

Comments received in response to this notice will be considered in development of the final interim directive. In a related notice published elsewhere in this part of today's Federal Register, the Forest Service is requesting comment on a proposed interim directive to guide its employees regarding compliance with the Forest Service Outdoor Recreation Accessibility Guidelines (FSORAG).

DATES:

Comments must be received in writing by April 18, 2005.

ADDRESSES:

Send written comments by mail to USDA Forest Service, Attn: Director, Recreation and Heritage Resources Staff, Mail Stop 1125, 1400 Independence Avenue, SW., Washington, DC 20250-0003; by electronic mail to [e-mail]; or by facsimile to [phone]. Comments also may be submitted by following the instructions at that Federal e-Rulemaking portal, http://www.regulations.gov. If comments are sent by electronic means or by facsimile, the public is requested not to send duplicate comments via regular mail.

All comments, including names and addresses when provided, will be placed in the record and will be available for public inspection and copying. The public may inspect comments received on this proposed interim directive in the Office of the Director, Recreation and Heritage Resources Staff, USDA, Forest Service, 4th Floor-Central, Sidney R. Yates Federal Building, 201 14th Street, SW., Washington, DC, between 8:30 a.m. and 4 p.m. on business days. Those wishing to inspect comments are encouraged to call ahead at [phone] to facilitate entry into the building.

FOR FURTHER INFORMATION CONTACT:

Janet Zeller, Recreation and Heritage Resources Staff, USDA, Forest Service, [phone].

SUPPLEMENTARY INFORMATION:

Background

Although the Forest Service is committed to ensuring the accessibility of agency facilities and programs in order to serve all employees and visitors, as well as to comply with the Architectural Barriers Act of 1968 (ABA) and Section 504 of the Rehabilitation Act of 1973, agency accessibility requirements for outdoor recreation areas have not been integrated into the Forest Service Directives System.

The ABA requires facilities that are designed, constructed, altered, or leased by, for, or on behalf of a Federal agency to be accessible. To emphasize the need for accessibility guidelines for outdoor recreation areas, in 1993 the Forest Service developed Universal Access to Outdoor Recreation, A Design Guide. This guidebook blended accessibility into the recreation opportunity spectrum, ranging from urban areas in full compliance with the Uniform Federal Accessibility Standard, the ABA accessibility standards in place at that time, to primitive and Congressionally designated wilderness areas.

The Access Board is the agency responsible for issuing accessibility guidelines for newly constructed and altered facilities subject to the ABA. The Forest Service served on the Access Board's Regulatory Negotiation Committee on Outdoor Developed Areas (Reg Neg Committee). In 1999, the Reg Neg Committee proposed accessibility guidelines for outdoor recreation facilities and trails. While awaiting the completion of the rulemaking process for these guidelines, the Forest Service began developing internal guidelines for both trails and outdoor recreation facilities that would apply only within National Forest System boundaries and that would comply with the public notice and comment process for Forest Service directives pursuant to 36 CFR part 216. This action was undertaken to meet the agency's need to provide a consistent and reliable method for determining application and design of accessible outdoor recreation facilities and trails and is based on the Reg Neg Committee's proposed guidelines. These internal guidelines incorporate the Forest Service's terminology and processes, and establish greater accessibility requirements for certain areas. The Forest Service's proposed guidelines are in two parts, the Forest Service Outdoor Recreation Accessibility Guidelines (FSORAG) and the Forest Service Trail Accessibility Guidelines (FSTAG), both of which are available at http://www.fs.fed.us/​recreation/​programs/​accessiblity.

The Access Board plans to publish a notice of proposed rulemaking (NPRM) in the spring of 2005 seeking public comment on proposed accessibility guidelines for outdoor developed areas, including trails. The NPRM will contain proposed accessibility guidelines developed by the Reg Neg Committee, and will apply to Federal agencies subject to the ABA.

The Forest Service is proposing to issue an interim directive to Forest Service Manual (FSM) 2350, Trail, River, and Similar Recreation Opportunities, that would provide direction for maximizing the accessibility of new or altered trails managed for pedestrian use within the National Forest System, while recognizing and protecting the unique characteristics of the natural setting of each trail. In addition, the interim directive would define a wheelchair or mobility device; would define an all-terrain vehicle and an off-highway vehicle; and would clarify internal agency procedures and existing policies related to the accessibility of outdoor recreation areas.

Application of the FSTAG would ensure that the full range of trail opportunities continue to be provided, from primitive long-distance trails to highly developed trails to popular scenic overlooks. All Forest Service trail classes would remain intact.

The FSTAG would provide for the specific conditions of departure and exceptions, also contained in the proposed accessibility guidelines developed by the regulatory negotiation committee established by the Access Board, when necessary to preserve the uniqueness of each trail or when application of the accessibility standards would cause a change in the trail's setting or in the purpose or function for which the trail was designed. In all likelihood this means most existing primitive trails would not be subject to the FSTAG. However, the FSTAG could apply to portions of these trails where they pass through a more urban area. The FSTAG contains exceptions that would prevent accessibility from being pointlessly applied piecemeal throughout a trail when access between segments is not possible, and requires providing accessibility to special features where possible.

The Forest Service will work with the Access Board as it develops final accessibility guidelines for outdoor developed areas. The Forest Service will finalize the direction in this interim directive regarding compliance with the FSTAG when the Access Board finalizes its accessibility guidelines for outdoor developed areas. The final FSTAG will contain the Access Board's final accessibility guidelines for outdoor developed areas managed by Federal agencies, as supplemented by the Forest Service to ensure the agency's continued application of universal design, as well as agency terminology and processes.

In a related notice published elsewhere in this part of today's Federal Register, the agency is requesting comment on a proposed interim directive to guide its employees regarding compliance with the FSORAG, which would apply to new or reconstructed outdoor developed recreation areas. The FSTAG and the FSORAG are both available electronically on the World Wide Web at http://www.fs.fed.us/​recreation/​programs/​accessibility. Copies also may be obtained by writing to the USDA, Forest Service, Attn: Accessibility Program Manager, Recreation and Heritage Resources Staff, Mail Stop 1125, 1400 Independence Avenue, SW., Washington, DC 20250-0003.

Regulatory Certifications

Environmental Impact

Section 31.1b of Forest Service Handbook (FSH) 1909.15 (57 FR 43180, September 18, 1992) excludes from documentation in an environmental assessment or environmental impact statement “rules, regulations, or policies to establish Service-wide administrative procedures, program processes, or instructions.” The agency's preliminary conclusion is that this proposed interim directive falls within this category of actions and that no extraordinary circumstances exist which would require preparation of an environmental assessment or environmental impact statement.

Regulatory Impact

This proposed interim directive has been reviewed under USDA procedures and Executive Order 12866 on regulatory planning and review. The Office of Management and Budget (OMB) has determined that the accessibility guidelines portion of the proposed interim directive is not economically significant because it would not have an annual economic impact of $100 million or more. However, the accessibility guidelines portion of the proposed interim directive was determined by OMB to be significant because of its relationship to the accessibility guidelines to be issued by the Access Board. Accordingly, this proposed interim directive has been reviewed by OMB pursuant to Executive Order 12866. The regulatory impact analysis is available at http://www.fs.fed.us/​recreation/​programs/​accessibility.

Moreover, this proposed interim directive has been considered in light of the Regulatory Flexibility Act (5 U.S.C. 602 et seq.). It has been determined that this proposed interim directive would not have a significant economic impact on a substantial number of small entities as defined by the act because the proposed interim directive would not impose recordkeeping requirements on them; it would not affect their competitive position in relation to large entities; and it would not affect their cash flow, liquidity, or ability to remain in the market. The proposed interim directive would establish accessibility guidelines that would apply internally to the Forest Service and that would have no direct effect on small businesses. No small businesses have been awarded contracts for construction or reconstruction of recreation facilities covered by these accessibility guidelines.

No Takings Implications

This proposed interim directive has been analyzed in accordance with the principles and criteria contained in Executive Order 12630. It has been determined that this proposed interim directive would not pose the risk of a taking of private property.

Civil Justice Reform

This proposed interim directive has been reviewed under Executive Order 12988 on civil justice reform. After adoption of this proposed interim directive, (1) all State and local laws and regulations that conflict with this interim directive or that impede its full implementation would be preempted; (2) no retroactive effect would be given to this interim directive; and (3) it would not require administrative proceedings before parties may file suit in court challenging its provisions.

Unfunded Mandates

Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538), which the President signed into law on March 22, 1995, the agency has assessed the effects of this proposed interim directive on State, local, and Tribal governments and the private sector. This proposed interim directive would not compel the expenditure of $100 million or more by any State, local, or Tribal government or anyone in the private sector. Therefore, a statement under section 202 of the act is not required.

Federalism and Consultation and Coordination With Indian Tribal Governments

The agency has considered this proposed interim directive under the requirements of Executive Order 13132 on federalism, and has made an assessment that the proposed interim directive conforms with the federalism principles set out in this Executive Order; would not impose any compliance costs on the States; and would not have substantial direct effects on the States, the relationship between the Federal government and the States, or the distribution of power and responsibilities among the various levels of government. Therefore, the agency has determined that no further assessment of federalism implications is necessary.

Moreover, this proposed interim directive does not have Tribal implications as defined by Executive Order 13175, “Consultation and Coordination With Indian Tribal Governments,” and therefore advance consultation with Tribes is not required.

Energy Effects

This proposed interim directive has been reviewed under Executive Order 13211 of May 18, 2001, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. It has been determined that this proposed interim directive does not constitute a significant energy action as defined in the Executive Order.

Controlling Paperwork Burdens on the Public

This proposed interim directive does not contain any recordkeeping or reporting requirements or other information collection requirements as defined in 5 U.S.C. part 1320 that are not already required by law or not already approved for use. Accordingly, the review provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) and its implementing regulations at 5 CFR part 1320 do not apply.

Dated: February 11, 2005.

Sally Collins,

Acting Chief.

Text of Proposed Interim Directive

Note:

The Forest Service organizes its directives system by alphanumeric codes and subject headings. Only those sections of the Forest Service Manual (FSM) that are the subject of this notice are set out here. The intended audience for this proposed interim direction is agency employees charged with the management of trails on National Forest System lands. Only new and revised direction from FSM 2350 is set out in the proposed interim directive. The asterisks indicate that parent text direction unchanged by this proposed interim directive is not set out in this notice. The full text of the current FSM 2350 is available electronically on the World Wide Web at http://www.fs.fed.us/​im/​directives.

Forest Service Manual

Chapter 2350—Trail, River, and Similar Recreation Opportunities

* * * * *

[The uncoded introductory paragraph to this Chapter and FSM 2350.2 are unchanged.]

2350.3—Policy

* * * * *

[Paragraphs 1-6 are unchanged.]

7. Comply with the FSTAG (FSM 2353.01c, para. 7) when the FSTAG establishes a higher standard for trails than Federal accessibility standards (FSM 2353.01c, para 3).

* * * * *

[FSM 2352-2352.1 are unchanged.]

2353—National Forest System Trails

2353.01—Authority

See FSM 2350.1 for general authorities on developing and managing trails. For the authorities and technical guidelines related to the accessibility of trails, see FSM 2353.01c.

* * * * *

[FSM 2353.01-2353.01b are unchanged.]

2353.01c—Federal and Agency Requirements for Accessibility of Trails

For related direction on the authorities for the accessibility of recreation programs, sites, and facilities, see FSM 2330.12.

1. Architectural Barriers Act (ABA) of 1968, as amended (42 U.S.C. 4151 et seq.). This act requires that all facilities designed, constructed, altered, or leased by a Federal agency be accessible to persons with disabilities.

2. Architectural Barriers Act Accessibility Guidelines (36 CFR part 1191, Appendices C and D). These guidelines were issued by the Architectural and Transportation Barriers Compliance Board (Access Board) in 2004 and apply to buildings and facilities subject to the Architectural Barriers Act of 1968. When adopted as standards by the General Services Administration, they will apply to Forest Service buildings and facilities.

3. Architectural Barriers Act Accessibility Guidelines for Outdoor Developed Areas (36 CFR part 1190). These guidelines will be issued by the Architectural and Transportation Barriers Compliance Board (Access Board) in 2005 and apply to outdoor developed areas, including trails, managed by Federal agencies subject to the Architectural Barriers Act of 1968. When adopted as standards by the General Services Administration, they will apply to outdoor developed areas, including trails, managed by the Forest Service.

4. Rehabilitation Act of 1973, as amended, Sections 504 and 508 (29 U.S.C. 794 and 794d). Section 504 of this act (29 U.S.C. 794) prohibits Federal agencies and recipients of Federal financial assistance from discriminating against any person with a disability. Section 508 of this act (29 U.S.C. 794d) requires that all electronic and information technology purchased or developed by a Federal agency allow persons with disabilities to have access to and use of the information and data that is comparable to that provided to persons without disabilities.

5. Enforcement of Nondiscrimination on the Basis of Disability in Programs or Activities of USDA (7 CFR parts 15e and 15b). The USDA regulations implementing section 504 of the Rehabilitation Act as it applies to programs and activities conducted by USDA are found at 7 CFR part 15e. The USDA regulations implementing section 504 of the Rehabilitation Act as it applies to USDA-assisted programs are found at 7 CFR part 15b. These provisions address program accessibility; requirements for accessible programs in new, altered, or existing facilities; accessibility transition planning; accessible communication requirements; and compliance procedures.

6. Americans With Disabilities Act of 1990 (ADA) (42 U.S.C. 12101 et seq.). This act prohibits discrimination on the basis of disability by State or local governments, public accommodations, and public transportation. The ADA does not apply to Federal agencies, with the exception of Title V, section 507c. This provision clarifies that the Wilderness Act of 1964 is preeminent in federally designated wilderness areas, contains a definition of a wheelchair, and states that a device that meets that definition can be used wherever foot travel is permitted in federally designated wilderness areas (FSM 2353.05, para. 10).

7. Forest Service Trail Accessibility Guidelines (FSTAG). The FSTAG contains the accessibility guidelines for outdoor developed areas, including trails, issued by the Architectural and Transportation Barriers Compliance Board (Access Board), as supplemented by the Forest Service to ensure the agency's continued application of universal design, as well as agency terminology and processes. The FSTAG is available electronically on the World Wide Web at http://www.fs.fed.us/​recreation/​programs/​accessibility. Copies also may be obtained by writing to the Accessibility Program Manager, Recreation and Heritage Resources Staff, Washington Office.

* * * * *

[FSM 2353.02 and FSM 2553.03, paragraphs 1-6, are unchanged.]

2553.03—Policy

7. Ensure that all new or reconstructed trails comply with Federal and Forest Service accessibility guidelines and standards for trails managed for pedestrian use (FSM 2353.01c, para. 1-7). The FSTAG applies to trails managed for pedestrian use when the FSTAG establishes a higher standard for those trails than Federal accessibility standards (FSM 2353.01c, para. 2 and 3).

* * * * *

[FSM 2353.04-2353.04g and FSM 2353.05, paragraphs 1-9, are unchanged.]

2353.05—Definitions

10. Wheelchair or Mobility Device. A device, including one that is battery-powered, that is designed solely for use by a mobility-impaired person for locomotion, and that is suitable for use in an indoor pedestrian area. A person whose disability requires use of a wheelchair or mobility device may use a wheelchair or mobility device that meets this definition anywhere foot travel is permitted (Title V, sec. 507c, of the ADA).

* * * * *

[FSM 2353.1-2353.26 are unchanged.]

2353.27—Accessibility

Ensure that all new or reconstructed trails comply with Federal and Forest Service accessibility guidelines and standards for trails managed for pedestrian use (FSM 2353.01c, para. 1-7). The FSTAG applies to trails managed for pedestrian use when the FSTAG establishes a higher standard for those trails than Federal accessibility standards (FSM 2353.01c, para. 2 and 3). The FSTAG is available electronically on the World Wide Web at http://www.fs.fed.us/​recreation/​programs/​accessibility. Copies also may be obtained by writing to the Accessibility Program Manager, Recreation and Heritage Resources Staff, Washington Office.

* * * * *

[FSM 2353.3-2354 and FSM 2355.01-2355.04d are unchanged.]

2355—Management of Off-Highway Vehicle Use

[Alphabetize existing definitions, insert the following new definitions for all-terrain vehicle, off-highway vehicle, and wheelchair or mobility device, and renumber the paragraphs accordingly.]

2355.05—Definitions

* * * * *

2. All-Terrain Vehicle (ATV). A type of off-highway vehicle that travels on three or more low-pressure tires; has handle-bar steering; and has a seat designed to be straddled by the operator.

* * * * *

8. Motor Vehicle. Any vehicle which is self-propelled, other than:

(1) a vehicle operated on rails; and

(2) any wheelchair or mobility device, including one that is battery-powered, that is designed solely for use by a mobility-impaired person for locomotion, and that is suitable for use in an indoor pedestrian area.

9. Off-Highway Vehicle (OHV). Any motor vehicle designed for or capable of cross-country travel on or immediately over land, water, sand, snow, ice, marsh, swampland, or other natural terrain.

* * * * *

13. Wheelchair or Mobility Device. See the definition at FSM 2353.05, paragraph 10.

* * * * *

[The remainder of the chapter (FSM 2355.11-2356.6) is unchanged.]