Final Rule Adopting New Accessibility Standards -- Effective November 29, 2006

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[Federal Register: October 30, 2006 (Volume 71, Number 209)]
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[DOCID:fr30oc06-16]                         

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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.

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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), bob.ashby@dot.gov (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
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
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.

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)

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.

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.
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.

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]

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)''.

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).

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

* * * * *

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