[Federal Register Volume 71, Number 209 (Monday, October 30, 2006)]
[Rules and Regulations]
[Pages 63263-63267]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-16680]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
49 CFR Part 37
[Docket OST-2006-26035]
RIN 2105-AC86
Transportation for Individuals With Disabilities; Adoption of New
Accessibility Standards
AGENCY: Office of the Secretary, Department of Transportation.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Department is amending its Americans with Disabilities Act
(ADA) regulations to adopt, as its regulatory standards, the new
Americans with Disabilities Act Accessibility Guidelines (ADAAG)
recently issued by the Access Board, including technical amendments the
Access Board subsequently made to the new ADAAG. In adopting the new
ADAAG as its standards, the Department is making minor modifications to
some of the Guidelines and is providing further guidance concerning its
newly-adopted standards.
DATES: This rule is effective November 29, 2006.
FOR FURTHER INFORMATION CONTACT: Robert C. Ashby, Deputy Assistant
General Counsel for Regulation and Enforcement, Department of
Transportation, 400 7th Street, SW., Room 10424, Washington, DC 20590.
(202) 366-9306 (voice); (202) 755-7687 (TDD), [email protected] (e-
mail).
SUPPLEMENTARY INFORMATION: Under the ADA, the Access Board has the
responsibility of creating ``guidelines'' for the accessibility of
buildings, facilities, and vehicles subject to ADA requirements (the
Americans with Disabilities Act Accessibility Guidelines, or ADAAG). It
is then the responsibility of the Department of Transportation and
Department of Justice to incorporate into their ADA regulations
accessibility ``standards'' consistent with the Access Board's minimum
guidelines.
The Department met this obligation in its 1991 ADA regulations
through verbatim incorporation of the original ADAAG in Appendix A to
part 37. The Access Board issued a major revision to
[[Page 63264]]
ADAAG two years ago (69 FR 44084; July 23, 2004), after an extensive
notice and comment proceeding and an assessment of the costs of the
revisions. In addition, the Board has issued technical amendments to
the new ADAAG.
Through this amendment, the Department is incorporating the new
ADAAG, including the Board's subsequent technical amendments, into part
37 as the new standards for accessible transportation facilities. In
order to avoid duplication, since the entire text of the new ADAAG is
available in materials published by the Access Board, the Department is
not republishing the voluminous text of the Access Board document.
Rather, we are adopting by cross-reference Appendices B and D to 36 CFR
part 1191 (including the index), the codification of the revised ADAAG,
into Sec. 37.9 of the Department's ADA regulations. Appendix A to part
37, which formerly contained the old ADAAG, will now list a few minor
additions or modifications that the Department is making in the
standards in the context of transportation facility accessibility.
This DOT rulemaking applies only to facilities and systems that are
subject to the DOT ADA regulations, 49 CFR parts 37 and 38. We note
that the Department of Justice is conducting a separate rulemaking to
incorporate the ADAAG into its ADA regulations, which cover a much
wider variety of public and private sector facilities.
The Department issued a notice of proposed rulemaking proposing to
adopt the Access Board's draft guidelines (65 FR 48444; August 8,
2000). The Department received only one comment, from a transit
authority. That comment is accommodated by the new Sec. 37.9(c),
described in the following paragraph.
Section 37.9(a) adopts the new ADAAG by cross-reference as the new
standards for accessible transportation facilities. References in
paragraph (d) of this section to the old Appendix A have also been
updated. One of the issues an agency always faces when updating
standards is how to handle projects that are in progress at the time
the new standards come into effect. The Department has determined that
the clearest way of handling this issue is to provide in paragraph
(c)(1) that if a project--either new construction or alteration of an
existing facility--is already in progress (i.e., actual construction
has already begun or the final design has received all necessary
approvals) on the effective date of this amendment, and the work in
progress would meet the requirements of the old standards, the
construction or alteration need not meet the requirements of the new
standards. The entity or person constructing or altering the facility
could also choose to comply with the new standards in such a case.
Paragraph (c)(2) similarly provides that an existing facility that
complies with the old standards does not have to be retrofitted to
comply with the new standards. Of course, any future alteration to an
existing facility would have to comply with the new standards.
The Department is also making a clarifying change to its procedures
for equivalent facilitation determinations. Paragraph (d)(6)(i)
provides that equivalent facilitation determinations are case-by-case,
site-specific decisions that apply only to the particular situation to
which they pertain. With respect to facilities, in which equivalent
facilitations are by nature unique, this provision makes sense.
However, there may be some situations concerning manufactured products
or accessibility features in which an equivalent facilitation can
reasonably apply to a class of situations. For example, if a feature of
a bus lift or detectable warning tile used in transit facilities
receives an equivalent facilitation determination from the Federal
Transit Administration, it is possible that the determination can
reasonably apply to transit vehicles or transit facilities other than
the one in which the issue arose. We are adding language to this
paragraph giving Administrators the discretion to permit broader
applications of equivalent facilitation determinations when doing so
would be appropriate in these kinds of cases.
Former ADAAG 4.1.1(5) provided a ``structural impracticability''
exception to the requirements for new buildings and facilities. This
exception does not exist in the new ADAAG. The reason the Access Board
deleted this language was to avoid duplication with an existing
requirement to the same effect in Department of Justice regulations
(see 28 CFR Sec. 36.401(c)). For consistency with the approach taken
by the Access Board and Department of Justice, and to ensure
consistency between facilities subject to Titles II and III of the ADA
under part 37, the Department has added the language of the Department
of Justice regulation to Sec. 37.41 of this part. We would note that
the ``structural impracticability'' exception should not be applied to
a situation in which a facility is located in ``hilly'' terrain or on a
plot of land on which there are steep grades. In such circumstances,
accessibility can be achieved without destroying the physical integrity
of the structure, and is required in the construction of new
facilities.
The Department is also adopting language that would continue in
effect the current requirements of ADAAG concerning detectable warnings
at curb ramps. Detectable warnings in curb ramps have long been
required by ADAAG and DOT and DOJ regulatory standards that have long
been, and remain, in effect. Currently, the Access Board is working on
new public rights-of-way (PROW) guidelines, the current proposed
version of which would retain a detectable warnings requirement.
Because the Access Board is proposing this requirement in the PROW
document, the July 2004 ADAAG did not include a parallel detectable
warning requirement. The unintended consequence of the relationship
between the Access Board's timing with respect to the ADAAG and PROW
issuances is that, if the Department adopts the new ADAAG, the current
detectable warnings requirement for curb ramps would disappear, only to
reappear in a few years if the current Access Board PROW proposal is
adopted. (If the Access Board deletes or modifies its current proposal
concerning detectable warnings in final PROW guidelines, the Department
will modify part 37 accordingly.)
The Department, along with an overwhelming majority of Access Board
members, believes that detectable warnings are a very useful design
feature that makes the built environment safer and more accessible for
persons with impaired vision. It would be undesirable, as a policy
matter, to permit the Department's current detectable warnings
requirement to lapse, particularly since the Department has never
sought or received comment on the merits of ending this existing
requirement. The Department will therefore maintain the status quo with
respect to detectable warnings in this rule. Doing so will not add any
burdens for regulated parties, or create any new or increased costs for
them: regulated parties will just continue complying with precisely the
same requirements that have applied to them (with a brief interruption
during a 1998-2001 suspension of these requirements) since 1991.
The Department is correcting a typographical error in Sec.
37.131(b)(4). A citation in that paragraph should refer to Sec. 37.137
(b) and (c) rather than to Sec. 37.131 (b) and (c).
In the new Appendix A, the Department provides web site addresses
for the incorporated Appendices B and D to 36 CFR Part 1191 and lists
three sections of the new ADAAG to which
[[Page 63265]]
the Department is making minor alterations. With respect to Sec.
206.3, the Department adds language, drawn from the old standards,
emphasizing that the distance that persons with disabilities must
travel to use various important station elements must be minimized. In
Sec. 810.2.2, the Department adds a provision from the former Sec.
37.9 (c) of this part that public entities must ensure bus boarding and
alighting areas comply with the required dimensions to the extent
construction specifications are within their control. In Sec. 810.5.3,
the Department is incorporating language from former ADAAG Sec.
10.3.1(9), concerning the coordination of platform and rail car door
height. The intent of this addition is to preserve existing regulatory
language pending further regulatory action by the Department to amend
49 CFR part 37 regulatory requirements concerning rail platforms. These
modifications are explained in more detail in a new section of Appendix
D to the regulation. Section 810.5.3 and related Appendix D language
may subsequently be changed to be consistent with future changes to
Part 37 in the rail platform area.
The Department is also correcting an editing or printing error that
has crept into recent editions of the Code of Federal Regulations in
the Appendix D discussion of the service area paratransit criterion.
The sentence in question concerns the effect of political boundaries on
the paratransit obligations of transit providers. The correction
restores the original language of the Appendix, as published in the
Department's 1991 ADA rule.
Regulatory Analyses and Notices
This is a nonsignificant rule for purposes of Executive Order 12886
and the Department's Regulatory Policies and Procedures. The Office of
Management and Budget has concurred in its designation as
nonsignificant. The Access Board has already conducted a regulatory
assessment of the costs and other effects of changes in the ADAAG,
which the Office of Management and Budget has reviewed and approved.
The Department believes that the changes in ADAAG, as they affect
transportation entities covered by the Department's rules, will have so
minimal an incremental economic impact on regulated parties that
further economic analysis is unnecessary. For this reason, the
Department certifies that this rule will not have significant economic
effects on a substantial number of small entities. In addition, we have
determined that the rule will not have sufficient Federalism impacts to
warrant the production of a Federalism assessment.
Issued this 26th day of September, 2006, at Washington DC.
Maria Cino,
Acting Secretary of Transportation.
0
For the reasons set forth in the preamble, the Department amends 49 CFR
part 37 as follows:
PART 37--TRANSPORTATION SERVICES FOR INDIVIDUALS WITH DISABILITIES
(ADA)
0
1. The authority citation for 49 CFR part 37 continues to read as
follows:
Authority: 42 U.S.C. 12101-12213; 49 U.S.C. 322.
0
2. Section 37.9 is revised to read as follows:
Sec. 37.9 Standards for accessible transportation facilities.
(a) For purposes of this part, a transportation facility shall be
considered to be readily accessible to and usable by individuals with
disabilities if it meets the requirements of this part and the
requirements set forth in Appendices B and D to 36 CFR part 1191, which
apply to buildings and facilities covered by the Americans with
Disabilities Act, as modified by Appendix A to this part.
(b) Facility alterations begun before January 26, 1992, in a good
faith effort to make a facility accessible to individuals with
disabilities may be used to meet the key station requirements set forth
in Sec. Sec. 37.47 and 37.51 of this part, even if these alterations
are not consistent with the requirements set forth in Appendices B and
D to 36 CFR part 1191 and Appendix A to this part, if the modifications
complied with the Uniform Federal Accessibility Standards (UFAS) or
ANSI A117.1(1980) (American National Standards Specification for Making
Buildings and Facilities Accessible to and Usable by the Physically
Handicapped). This paragraph applies only to alterations of individual
elements and spaces and only to the extent that provisions covering
those elements or spaces are contained in UFAS or ANSI A117.1, as
applicable.
(c) (1) New construction or alterations of buildings or facilities
on which construction has begun, or all approvals for final design have
been received, before [insert effective date of this amendment] are not
required to be consistent with the requirements set forth in Appendices
B and D to 36 CFR part 1191 and Appendix A to this part, if the
construction or alterations comply with the former Appendix A to this
part, as codified in the October 1, 2006, edition of the Code of
Federal Regulations.
(2) Existing buildings and facilities that are not altered after
November 29, 2006, and which comply with the former Appendix A to this
part, are not required to be retrofitted to comply with the
requirements set forth in Appendices B and D to 36 CFR part 1191 and
Appendix A to this part.
(d)(1) For purposes of implementing the equivalent facilitation
provision in ADA Chapter 1, Section 103, of Appendix B to 36 CFR part
1191, the following parties may submit to the Administrator of the
applicable operating administration a request for a determination of
equivalent facilitation:
(i)(A) A public or private entity that provides transportation
facilities subject to the provisions of subpart C of this part, or
other appropriate party with the concurrence of the Administrator.
(B) With respect to airport facilities, an entity that is an
airport operator subject to the requirements of 49 CFR part 27 or
regulations implementing the Americans with Disabilities Act, an air
carrier subject to the requirements of 14 CFR part 382, or other
appropriate party with the concurrence of the Administrator.
(ii) The manufacturer of a product or accessibility feature to be
used in a transportation facility or facilities.
(2) The requesting party shall provide the following information
with its request:
(i) Entity name, address, contact person and telephone;
(ii) Specific provision(s) of Appendices B and D to 36 CFR part
1191 or Appendix A to this part concerning which the entity is seeking
a determination of equivalent facilitation.
(iii) [Reserved]
(iv) Alternative method of compliance, with demonstration of how
the alternative meets or exceeds the level of accessibility or
usability provided in Appendices B and D to 36 CFR part 1191 or
Appendix A to this part; and
(v) Documentation of the public participation used in developing an
alternative method of compliance.
(3) In the case of a request by a public entity that provides
transportation facilities (including an airport operator), or a request
by an air carrier with respect to airport facilities, the required
public participation shall include the following:
(i) The entity shall contact individuals with disabilities and
groups representing them in the community.
[[Page 63266]]
Consultation with these individuals and groups shall take place at all
stages of the development of the request for equivalent facilitation.
All documents and other information concerning the request shall be
available, upon request, to Department of Transportation officials and
members of the public.
(ii) The entity shall make its proposed request available for
public comment before the request is made final or transmitted to DOT.
In making the request available for public review, the entity shall
ensure that it is available, upon request, in accessible formats.
(iii) The entity shall sponsor at least one public hearing on the
request and shall provide adequate notice of the hearing, including
advertisement in appropriate media, such as newspapers of general and
special interest circulation and radio announcements.
(4) In the case of a request by a manufacturer or a private entity
other than an air carrier, the manufacturer or private entity shall
consult, in person, in writing, or by other appropriate means, with
representatives of national and local organizations representing people
with those disabilities who would be affected by the request.
(5) A determination of compliance will be made by the Administrator
of the concerned operating administration on a case-by-case basis, with
the concurrence of the Assistant Secretary for Transportation Policy.
(6)(i) Determinations of equivalent facilitation are made only with
respect to transportation facilities, and pertain only to the specific
situation concerning which the determination is made. Provided,
however, that with respect to a product or accessibility feature that
the Administrator determines can provide an equivalent facilitation in
a class of situations, the Administrator may make an equivalent
facilitation determination applying to that class of situations.
(ii) Entities shall not cite these determinations as indicating
that a product or method constitutes equivalent facilitation in
situations, or classes of situations, other than those to which the
determinations specifically pertain.
(iii) Entities shall not claim that a determination of equivalent
facilitation indicates approval or endorsement of any product or method
by the Federal government, the Department of Transportation, or any of
its operating administrations.
0
3. Amend Sec. 37.41 by designating the existing text as paragraph (a)
and adding a new paragraph (b), to read as follows:
Sec. 37.41 Construction of transportation facilities by public
entities.
(a) * * *
(b) (1) Full compliance with the requirements of this section is
not required where an entity can demonstrate that it is structurally
impracticable to meet the requirements. Full compliance will be
considered structurally impracticable only in those rare circumstances
when the unique characteristics of terrain prevent the incorporation of
accessibility features.
(2) If full compliance with this section would be structurally
impracticable, compliance with this section is required to the extent
that it is not structurally impracticable. In that case, any portion of
the facility that can be made accessible shall be made accessible to
the extent that it is not structurally impracticable.
(3) If providing accessibility in conformance with this section to
individuals with certain disabilities (e.g., those who use wheelchairs)
would be structurally impracticable, accessibility shall nonetheless be
ensured to persons with other types of disabilities (e.g., those who
use crutches or who have sight, hearing, or mental impairments) in
accordance with this section.
Sec. 37.131 [Amended]
0
4. Amend section 37.131(b)(4) by removing the words ``Sec. 37.131(b)
and (c)'' and adding, in their place, the words ``Sec. 37.137(b) and
(c)''.
0
5. Revise Appendix A to Part 37 to read as follows:
Appendix A to Part 37--Modifications to Standards for Accessible
Transportation Facilities
The Department of Transportation, in Sec. 37.9 of this part,
adopts as its regulatory standards for accessible transportation
facilities the revised Americans with Disabilities Act Guidelines
(ADAGG) issued by the Access Board on July 23, 2004. The ADAGG is
codified in the Code of Federal Regulations in Appendices B and D of
36 CFR part 1191. Note the ADAAG may also be found via a hyperlink
on the Internet at the following address: http://www.access-board.gov/ada-aba/final.htm. Like all regulations, the ADAAG also
can be found by using the electronic Code of Federal Regulations at
http://www.gpoaccess.gov/ecfr. Because the ADAAG has been
established as a Federal consensus standard by the Access Board, the
Department is not republishing the regulations in their entirety,
but is adopting them by cross-reference as permitted under 1 CFR
21.21(c)(4). In a few instances, the Department has modified the
language of the ADAAG as it applies to entities subject to 49 CFR
part 37. These entities must comply with the modified language in
this Appendix rather than the language of Appendices B and D to 36
CFR part 1191.
206.3 Location--Modification to 206.3 of Appendix B to 36 CFR Part 1191
Accessible routes shall coincide with, or be located in the same
area as general circulation paths. Where circulation paths are
interior, required accessible routes shall also be interior.
Elements such as ramps, elevators, or other circulation devices,
fare vending or other ticketing areas, and fare collection areas
shall be placed to minimize the distance which wheelchair users and
other persons who cannot negotiate steps may have to travel compared
to the general public.
406.8--Modification to 406 of Appendix D to 36 CFR Part 1191
A curb ramp shall have a detectable warning complying with 705.
The detectable warning shall extend the full width of the curb ramp
(exclusive of flared sides) and shall extend either the full depth
of the curb ramp or 24 inches (610 mm) deep minimum measured from
the back of the curb on the ramp surface.
810.2.2 Dimensions--Modification to 810.2.2 of Appendix D to 36 CFR
Part 1191
Bus boarding and alighting areas shall provide a clear length of
96 inches (2440 mm), measured perpendicular to the curb or vehicle
roadway edge, and a clear width of 60 inches (1525 mm), measured
parallel to the vehicle roadway. Public entities shall ensure that
the construction of bus boarding and alighting areas comply with
810.2.2, to the extent the construction specifications are within
their control.
810.5.3 Platform and Vehicle Floor Coordination--Modification to
810.5.3 of Appendix D to 36 CFR Part 1191
Station platforms shall be positioned to coordinate with
vehicles in accordance with the applicable requirements of 36 CFR
part 1192. Low-level platforms shall be 8 inches (205 mm) minimum
above top of rail. In light rail, commuter rail, and intercity rail
systems where it is not operationally or structurally feasible to
meet the horizontal gap or vertical difference requirements of part
1192 or 49 CFR part 38, mini-high platforms, car-borne or platform-
mounted lifts, ramps or bridge plates or similarly manually deployed
devices, meeting the requirements of 49 CFR part 38, shall suffice.
EXCEPTION: Where vehicles are boarded from sidewalks or street-
level, low-level platforms shall be permitted to be less than 8
inches (205 mm).
0
6. In Appendix D to Part 37, in the sixth paragraph under the heading
``Section 37.131 Service Criteria for Complementary Paratransit Service
Area,'' revise the last sentence and add a new section for ``Appendix A
to Part 37'' at the end of the appendix to read as follows:
Appendix D to Part 37--Construction and Interpretation of Provisions of
49 CFR Part 37
* * * * *
[[Page 63267]]
Section 37.131 Service Criteria for Complementary Paratransit Service
Area
* * * * *
* * * This exception to the service area criterion does not
automatically apply whenever there is a political boundary, only
when there is a legal bar to the entity providing service on the
other side of the boundary.
* * * * *
Appendix A to Part 37--Standards for Accessible Transportation
Facilities
Sections 504(a) and (b) of the Americans with Disabilities Act
(ADA) require the Access Board to adopt accessibility guidelines;
sections 204(c) and 306(c) of the ADA require the Department of
Transportation to adopt regulatory standards ``consistent with the
minimum guidelines and requirements'' issued by the Access Board. In
the original 1991 publication of part 37, the Department complied
with this requirement by reproducing the Access Board's Americans
with Disabilities Act Accessibility Guidelines (ADAAG) in their
entirety as Appendix A.
The Access Board revised ADAAG in July 2004. ADAAG, including
technical amendments issued in July 2005, is codified in Appendices
B and D to 36 CFR part 1191. In order to avoid duplication of
material that the Access Board has already included in the CFR, and
which is now readily available on the Internet, the Department has
adopted ADAAG by cross-reference in part 37, rather than reproducing
the lengthy Access Board publication. However, there are certain
provisions of ADAAG that the Department is modifying for clarity or
to preserve requirements that have been in effect under the existing
standards. Under the ADA, the Department, in adopting standards, has
the discretion to depart from the language of ADAAG as long as the
Department's standards remain consistent with the Access Board's
minimum guidelines. In addition, this appendix provides additional
guidance concerning some sections of the DOT standards as they apply
to transportation facilities.
Section 201.1
The basic scoping requirement requires all areas of newly
designed and newly constructed buildings and facilities to be
accessible. Former Sec. 4.1.1(5) provided a ``structural
impracticability'' exception to the requirements for new buildings
and facilities. The Access Board deleted this exception to avoid
duplication with an existing requirement to the same effect in
Department of Justice regulations (see 28 CFR Sec. 36.401(c)). For
consistency with the approach taken by the Access Board and
Department of Justice, and to ensure consistency between facilities
subject to Titles II and III of the ADA under part 37, the
Department has added the language of the Department of Justice
regulation to Sec. 37.41 of this part.
Section 206.3
This section concerns the location of accessible paths. The
Department is retaining language from former Sec. 10.3.1(1), which
provides that ``Elements such as ramps, elevators, or other
circulation devices, fare vending or other ticketing areas, and fare
collection areas shall be placed to minimize the distance which
wheelchair users and other persons who cannot negotiate steps may
have to travel compared to the general public.'' This concept, in
our view, is implicit in the language of Sec. 206.3. However, we
believe it is useful to make explicit the concept that, in
transportation facilities such as rail stations, important facility
elements are placed so as to minimize the distance persons with
disabilities must travel to use them. This requirement is intended
to affect decisions about where to locate entrances, boarding
locations (e.g., where a mini-high platform is used for boarding),
and other key elements of a facility.
Section 406.8
To maintain the status quo with respect to detectable warnings
in pedestrian facilities, the Department is adding a provision (not
found in the current version of the new ADAAG) requiring curb ramps
to have detectable warnings.
Section 810.2.2
The Department recognizes that there will be some situations in
which the full dimensions of a bus boarding and alighting area
complying with the Sec. 810.2.2 may not be able to be achieved
(e.g., there is less than 96 inches of perpendicular space available
from the curb or roadway edge, because of buildings or terrain
features). The Department is adding language from former Sec. 37.9
(c) of this part, which provides that ``Public entities shall ensure
the construction of bus boarding and alighting areas comply with
810.2.2, to the extent the construction specifications are within
their control.'' Where it is not feasible to fully comply with Sec.
810.2.2, the Department expects compliance to the greatest extent
feasible.
We note that there may be some instances in which it will be
necessary to make operational adjustments where sufficient clearance
is not available to permit the deployment of lifts or ramps on
vehicles. For example, a bus driver could position the bus at a
nearby point--even if not the precise location of the designated
stop--so that a passenger needing a lift or ramp to get on or off
the bus can do so. To avoid the need for such operational
adjustments, it is important to place bus shelters, signs, etc. so
that they do not intrude into the required clearances.
Section 810.5.3
This section concerns coordination between rail platforms and
rail vehicles. The Department is adding language from the former
Sec. 10.3.1 (9) (Exception 2), which provides that ``In light rail,
commuter rail, and intercity rail systems where it is not
operationally or structurally feasible to meet the horizontal gap or
vertical difference requirements, mini-high platforms, car-borne or
platform-mounted lifts, ramps or bridge plates or similarly manually
deployed devices, meeting the requirements of 49 CFR Part 38 shall
be permitted.''
In September 2005, the Department issued guidance concerning the
relationship of its ADA and 504 rules in the context of rail
platform accessibility This guidance emphasized that access to all
cars of a train is significant because, if passengers with
disabilities are unable to enter all cars from the platform, the
passengers will have access only to segregated service. This would
be inconsistent with the nondiscrimination mandate of the ADA. It
would also, in the case of Federal Transit Administration (FTA) and
Federal Railroad Administration (FRA)-assisted projects (including
Amtrak), be inconsistent with the requirement of the Department's
section 504 regulation (49 CFR Sec. 27.7), which requires service
in the most integrated setting reasonably achievable. This guidance
states the Department's views of the meaning of its existing rules,
and the Department will continue to use this guidance in applying
the provisions of this rule.
The Department notes that a related section of 49 CFR part 38
has been the source of some misunderstanding. Section 38.71(b)(2)
provides that ``Vehicles designed for, and operated on, pedestrian
malls, city streets, or other areas where level-entry boarding is
not practicable shall provide wayside or car-borne lifts, mini-high
platforms, or other means of access in compliance with Sec. 38.83
(b) or (c) of this part.'' The Department has received some
suggestions that this provision should be interpreted to mean that,
if there is any portion of a system in which level-entry boarding is
not practicable, then the entire system can use some method other
than level-entry boarding. Such an interpretation is incorrect. The
authority to use alternatives to level-entry boarding pertains only
to those portions of a system in which rail vehicles are ``operated
on'' an area where level-entry boarding is not practicable.
For example, suppose a light rail system's first three stops are
on a pedestrian/transit mall where it is infeasible to provide
level-entry boarding. The transit system could use car-borne lifts,
mini-high platforms, etc. to provide access at those three stops.
The system's next ten stops are part of a right-of-way in which
level-entry boarding is practicable. In such a case, level-entry
boarding would have to be provided at those ten stops. There is
nothing inappropriate about the same system having different means
of boarding in different locations, in such a case.
We also caution against a potential misunderstanding of the
sentence in Sec. 810.5.3 that provides that ``Low-level platforms
shall be 8 inches minimum (205 mm) above top of rail.'' This does
not mean that high-level platforms are prohibited or that low-level
platforms are the only design consistent with the rules. It simply
means that where low-level platforms are otherwise permitted, such
platforms must be at least 8 inches above the top of rail, except
where vehicles are boarded from the street or a sidewalk.
[FR Doc. E6-16680 Filed 10-27-06; 8:45 am]
BILLING CODE 4910-9X-P