10110 Federal Register / Vol. 78, No. 30 / Wednesday, February 13, 2013 / Proposed Rules 

TABLE 1—INFORMATION ON PARTICIPATION IN THE MEETINGS AND ON SUBMITTING COMMENTS TO THE RULEMAKING

DOCKETS—Continued 

Date Electronic address Address Other information 

Produce Safety Proposed Rule: 

http://www.regulations.gov/ 

#!docketDetail;D=FDA-2011-N0921.

1You may also register via email, mail, or fax. Please include your name, title, firm name, address, and phone and FAX numbers in your registration information and send to Courtney Treece (see FOR FURTHER INFORMATION CONTACT). Onsite registration will also be available. 2You may also request to make an oral presentation at the public meeting via email. Please include your name, title, firm name, address, and 

phone and fax numbers as well as the full text, comprehensive outline, or summary of your oral presentation, and send to Juanita Yates (see 

FOR FURTHER INFORMATION CONTACT). 

III. Comments, Transcripts, and 

Recorded Video 

Information and data submitted 

voluntarily to FDA during the public 

meetings will become part of the 

administrative record for the relevant 

rulemaking and will be accessible to the 

public at http://www.regulations.gov. 

The transcript of the proceedings from 

the public meetings will become part of 

the administrative record for each of the 

rulemakings. Please be advised that as 

soon as a transcript is available, it will 

be accessible at http:// 

www.regulations.gov and at FDA’s 

FSMA Web site at http://www.fda.gov/ 

Food/FoodSafety/FSMA/. It may also be 

viewed at the Division of Dockets 

Management (HFA–305), Food and Drug 

Administration, 5630 Fishers Lane, Rm. 

1061, Rockville, MD 20852. A transcript 

for each public meeting will also be 

available in either hardcopy or on CD– 

ROM, after submission of a Freedom of 

Information request. Written requests 

are to be sent to the Division of Freedom 

of Information (ELEM–1029), 12420 

Parklawn Dr., Element Bldg., Rockville, 

MD 20857. Additionally, FDA will be 

video recording the first public meeting 

in Washington, DC. Once the recorded 

video is available, it will be accessible 

at FDA’s FSMA Web site at http:// 

www.fda.gov/Food/FoodSafety/FSMA/. 

Dated: February 8, 2013. 

Leslie Kux, 

Assistant Commissioner for Policy. 

[FR Doc. 2013–03316 Filed 2–12–13; 8:45 am] 

BILLING CODE 4160–01–P 

ARCHITECTURAL AND 

TRANSPORTATION BARRIERS 

COMPLIANCE BOARD 

36 CFR Part 1190 

[Docket No. ATBCB–2013–0002] 

RIN 3014–AA26 

Accessibility Guidelines for Pedestrian 

Facilities in the Public Right-of-Way; 

Shared Use Paths 

AGENCY: Architectural and 

Transportation Barriers Compliance 

Board. 

ACTION: Supplemental notice of 

proposed rulemaking. 

SUMMARY: We, the Architectural and 

Transportation Barriers Compliance 

Board (Access Board), issued an 

advance notice of proposed rulemaking 

(ANPRM) announcing our intent to 

develop accessibility guidelines for 

shared used paths. Shared use paths are 

multi-use paths designed primarily for 

use by bicyclists and pedestrians, 

including pedestrians with disabilities, 

for transportation and recreation 

purposes. Shared use paths are 

physically separated from motor vehicle 

traffic by an open space or barrier, and 

are either within the highway right-ofway or within an independent right-ofway. We noted in the ANPRM that we 

are considering including accessibility 

guidelines for shared use paths in the 

accessibility guidelines that we are 

developing for sidewalks and other 

pedestrian facilities in the public rightof-way. We subsequently issued a notice 

of proposed rulemaking (NPRM) 

requesting comments on proposed 

accessibility guidelines for pedestrian 

facilities in the public right-of-way. The 

NPRM did not include specific 

provisions for shared use paths. We are 

issuing this supplemental notice of 

proposed rulemaking (SNPRM) to 

include specific provisions for shared 

use paths in the proposed accessibility 

guidelines for pedestrian facilities in the 

public right-of-way. The proposed 

accessibility guidelines would apply to 

the design, construction, and alteration 

of pedestrian facilities in the public 

right-of-way, including shared use 

paths, covered by the Americans with 

Disabilities Act and the Architectural 

Barriers Act, and would ensure that the 

facilities are readily accessible to and 

usable by individuals with disabilities. 

DATES: Submit comments by May 14, 

2013. 

ADDRESSES: Submit comments by any of 

the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

Regulations.gov ID for this docket is 

ATBCB–2013–0002. 

• Email: docket@access-board.gov. 

Include docket number ATBCB 2013– 

0002 in the subject line of the message. 

• Fax: 202–272–0081. 

• Mail or Hand Delivery/Courier: 

Scott Windley, Access Board, 1331 F 

Street NW., Suite 1000, Washington, DC 

20004–1111. 

All comments will be posted without 

change to http://www.regulations.gov, 

including any personal information 

provided. 

FOR FURTHER INFORMATION CONTACT: 

Scott Windley, Access Board, 1331 F 

Street NW., Suite 1000, Washington, DC 

20004–1111. Telephone (202) 272–0025 

(voice) or (202) 272–0028 (TTY). Email 

address row@access-board.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

1. Executive Summary 

2. Background 

3. Proposed Supplements to Proposed 

Accessibility Guidelines for Pedestrian 

Facilities in the Public Right-of-Way 

4. Comparison of Proposed Technical 

Provisions Applicable to Shared Use 

Paths and AASHTO Guide 

5. Conflicts Between Shared Path Users 

6. Regulatory Analyses 

In this preamble, ‘‘we,’’ ‘‘us,’’ and 

‘‘our’’ refer to the Architectural and 

Transportation Barriers Compliance 

Board (Access Board). 


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1. Executive Summary 

This supplemental notice of proposed 

rulemaking (SNPRM) proposes to 

include specific provisions for shared 

use paths in the proposed accessibility 

guidelines for pedestrian facilities in the 

public right-of-way published in the 

Federal Register on July 26, 2011. See 

76 FR 44664 (July 26, 2011). A copy of 

the proposed accessibility guidelines for 

pedestrian facilities in the public rightof-way with the specific provisions for 

shared use paths proposed in the 

SNPRM is available on our Web site at: 

http://www.access-board.gov/sup.htm. 

We are required by section 502 of the 

Rehabilitation Act to establish and 

maintain accessibility guidelines for the 

design, construction, and alteration of 

facilities covered by the Americans with 

Disabilities Act (ADA) and the 

Architectural Barriers Act (ABA) to 

ensure that the facilities are readily 

accessible to and usable by individuals 

with disabilities. See 29 U.S.C. 

792(b)(3). The ADA covers state and 

local government facilities, places of 

public accommodation, and commercial 

facilities. See 42 U.S.C. 12101 et seq. 

The ABA covers facilities financed with 

federal funds. See 42 U.S.C. 4151 et seq. 

We are issuing the SNPRM in 

response to public comments on 

separate rulemakings to develop 

accessibility guidelines for trails and 

other outdoor developed areas, and for 

sidewalks and other pedestrian facilities 

in the public right-of-way. The 

comments noted that shared use paths 

are distinct from trails and sidewalks, 

and recommended that we develop 

accessibility guidelines for shared use 

paths. As defined in the SNPRM, shared 

use paths are multi-use paths designed 

primarily for use by bicyclists and 

pedestrians, including pedestrians with 

disabilities, for transportation and 

recreation purposes. Shared use paths 

are physically separated from motor 

vehicle traffic by an open space or 

barrier, and are either within the 

highway right-of-way or within an 

independent right-of-way. 

As noted above, the SNPRM would 

include specific provisions for shared 

use paths in the proposed accessibility 

guidelines for pedestrian facilities in the 

public right-of-way. The proposed 

accessibility guidelines for pedestrian 

facilities in the public right-of-way 

would require pedestrian access routes 

to be provided within pedestrian 

circulation paths located in the public 

right-of-way, and would establish 

proposed technical provisions for the 

width, grade, cross slope, and surface of 

pedestrian access routes. See R204.2 

and R302. Where existing pedestrian 

circulation paths are altered and 

existing physical constraints make it 

impracticable for the altered paths to 

fully comply with the proposed 

technical provisions, compliance would 

be required to the extent practicable. 

See R202.3.1. 

The SNPRM would: 

• Require the full width of a shared 

use path to comply with the proposed 

technical provisions for the grade, cross 

slope, and surface of pedestrian access 

routes (see R302.3.2); 

• Permit compliance with the 

proposed technical provisions for the 

grade of pedestrian access routes to the 

extent practicable where physical 

constraints or regulatory constraints 

prevent full compliance (see R302.5.4 

and R302.5.5); 

• Prohibit objects from overhanging 

or protruding into any portion of a 

shared use path at or below 8 feet 

measured from the finished surface (see 

R210.3); and 

• Require the width of curb ramps 

and blended transitions in shared use 

paths to be equal to the width of the 

shared use path (see R304.5.1.2). 

The SNPRM is consistent with the 

design criteria for shared used paths in 

the American Association of State 

Highway and Transportation Officials 

(AASHTO) ‘‘Guide for the Development 

of Bicycle Facilities’’ (2012) (hereinafter 

referred to as the ‘‘AASHTO Guide’’). 

The SNPRM is not expected to increase 

the cost of constructing shared use paths 

for state and local government 

jurisdictions that use the AASHTO 

Guide. 

As discussed in the preamble to the 

proposed accessibility guidelines for 

pedestrian facilities in the public rightof-way, other federal agencies are 

required to adopt accessibility standards 

for the design, construction, and 

alteration of facilities covered by the 

ADA and ABA that are consistent with 

our accessibility guidelines. When the 

other federal agencies adopt 

accessibility standards for the design, 

construction, and alteration of 

pedestrian facilities in the public rightof-way, including shared use paths, 

covered by the ADA and ABA, 

compliance with the standards is 

mandatory. 

2. Background 

We are conducting separate 

rulemakings to develop accessibility 

guidelines for trails and other outdoor 

developed areas, and for sidewalks and 

other pedestrian facilities in the public 

right-of-way. 

We issued a notice of proposed 

rulemaking (NPRM) requesting 

comments on proposed accessibility 

guidelines for trails and other outdoor 

developed areas in 2007. See 72 FR 

34074 (June 20, 2007). A trail would be 

defined for purposes of these 

accessibility guidelines as a pedestrian 

route developed primarily for outdoor 

recreational purposes. A pedestrian 

route developed primarily to connect 

elements, spaces, or facilities within a 

site is not a trail. 

We requested comments on draft 

accessibility guidelines for sidewalks 

and other pedestrian facilities in the 

public right-of-way in 2002 and 2005. 

See 67 FR 41206 (June 17, 2002); and 70 

FR 70734 (November 23, 2005). These 

accessibility guidelines would adopt the 

definition of sidewalk in the Manual on 

Uniform Traffic Control Devices 

(MUTCD). The MUTCD (2009) defines a 

sidewalk as the portion of a street 

between the curb line, or the lateral line 

of a roadway, and the adjacent property 

line or on easements of private property 

that is paved or improved and intended 

for use by pedestrians. 

Public comments on these 

rulemakings noted that shared use paths 

are distinct from trails and sidewalks in 

that they are used by bicyclists and 

pedestrians, including pedestrians with 

disabilities, for transportation and 

recreation purposes. The comments 

recommended that we develop 

accessibility guidelines for shared use 

paths. On March 28, 2011, we issued an 

advance notice of proposed rulemaking 

(ANPRM) announcing our intent to 

develop accessibility guidelines for 

shared use paths, and requested 

comments on a definition and draft 

technical provisions for shared use 

paths. See 76 FR 17064 (March 28, 

2011). We noted in the ANPRM that we 

are considering including accessibility 

guidelines for shared use paths in the 

accessibility guidelines for pedestrian 

facilities in the public right-of-way since 

state and local transportation 

departments are the principal entities 

that design and construct shared use 

paths, and many of the draft technical 

provisions for shared use paths in the 

ANPRM are the same as those in the 

draft accessibility guidelines for 

pedestrian facilities in the public rightof-way (e.g., curb ramps and blended 

transitions, and detectable warning 

surfaces). 

On July 26, 2011, we issued a NPRM 

requesting comments on proposed 

accessibility guidelines for pedestrian 

facilities in the public right-of-way. See 

76 FR 44664 (July 26, 2011). The NPRM 

did not include specific provisions for 

shared use paths. The comment period 

on the NPRM ended on November 23, 

2011. The comment period was 

reopened on December 5, 2011 to allow 


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1The FHWA defines a shared use path as a multiuse trail or path physically separated from 

motorized vehicular traffic by an open space or 

barrier, either within the highway right-of-way or 

within an independent right of way, and usable for 

transportation purposes. The FHWA definition of 

shared use path is available at: http:// 

www.fhwa.dot.gov/environment/ 

bicycle_pedestrian/guidance/design_guidance/ 

freeways.cfm. 

2For example, the Washington State Department 

of Transportation Design Manual (July 2012) 

defines a shared use path as a facility physically 

separated from motorized vehicular traffic within 

the highway right-of-way or on an exclusive rightof-way with minimal cross flow by motor vehicles. 

The Washington State Department of 

Transportation Design Manual is available at: 

http://www.wsdot.wa.gov/Publications/Manuals/ 

M22–01.htm. 

additional time for the public to submit 

comments. See 76 FR 75844 (December 

5, 2011). The additional comment 

period ended on February 2, 2012. 

3. Proposed Supplements to Proposed 

Accessibility Guidelines for Pedestrian 

Facilities in the Public Right-of-Way 

We are issuing this SNPRM to include 

specific provisions for shared use paths 

in the proposed accessibility guidelines 

for pedestrian facilities in the public 

right-of-way published in the Federal 

Register on July 26, 2011. See 76 FR 

44664 (July 26, 2011). The proposed 

accessibility guidelines for pedestrian 

facilities in the public right-of-way will 

be codified as an appendix to 36 CFR 

part 1190. The SNPRM would 

supplement the following sections of 

the proposed accessibility guidelines for 

pedestrian facilities in the public rightof-way: R105.5 Defined Terms; R204 

and R302 Pedestrian Access Routes; 

R210 Protruding Objects; R218 Doors, 

Doorways, and Gates; and R304 Curb 

Ramps and Blended Transitions. The 

proposed supplements to these sections 

are set forth below. 

R105.5 Defined Terms 

Shared Use Path 

The SNPRM would add a proposed 

definition of shared use path in R105.5 

to read as follows: 

Shared Use Path. A multi-use path 

designed primarily for use by bicyclists 

and pedestrians, including pedestrians 

with disabilities, for transportation and 

recreation purposes. Shared use paths 

are physically separated from motor 

vehicle traffic by an open space or 

barrier, and are either within the 

highway right-of-way or within an 

independent right-of-way. 

The proposed definition is based on 

the AASHTO Guide, which defines a 

shared use path as a bikeway physically 

separated from motor vehicle traffic by 

an open space or barrier, and either 

within the highway right-of-way or 

within an independent right of way. The 

AASHTO Guide notes that pedestrians, 

including pedestrians with disabilities, 

also use shared use paths and that they 

can serve transportation and recreation 

purposes. See AASHTO Guide, 5.1 

Introduction. The U.S. Department of 

Transportation, Federal Highway 

Administration (FHWA) defines a 

shared use path similar to the AASHTO 

Guide.1 State transportation 

departments also define shared use 

paths similar to the AASHTO Guide.2

As noted in the AASHTO Guide, the 

primary factor that distinguishes shared 

use paths and sidewalks is the intended 

user. Shared use paths are designed for 

use by bicyclists and pedestrians, 

including pedestrians with disabilities. 

Sidewalks are designed for use by 

pedestrians, including pedestrians with 

disabilities, and are not intended for use 

by bicyclists. See AASHTO Guide, 5.2.2, 

Shared Use Paths Adjacent to Roadways 

(Sidepaths). 

Public Right-of-Way 

The SNPRM would revise the 

proposed definition of public right-ofway in R105.5 to read as follows: 

Public Right-of-Way. Public land 

acquired for or dedicated to 

transportation purposes, or other land 

where there is a legally established right 

for use by the public for transportation 

purposes. 

The NPRM proposed to define public 

right-of-way as public land or property, 

usually in interconnected corridors, that 

is acquired for or dedicated to 

transportation purposes. Some shared 

use paths may cross private land. In 

these situations, an easement or other 

legal means is used to establish a right 

for the public to use the portion of the 

land that the shared use path crosses for 

transportation purposes. The SNPRM 

would revise the proposed definition of 

public right-of-way to include these 

situations. 

R204 and R302 Pedestrian Access 

Routes 

The SNPRM would revise these 

sections relating to pedestrian access 

routes. 

R204.2 Pedestrian Circulation Paths 

The SNPRM would revise R204.2 to 

read as follows: 

R204.2 Pedestrian Circulation Paths. 

A pedestrian access route shall be 

provided within pedestrian circulation 

paths located in the public right-of-way. 

The pedestrian access route shall 

connect to accessible elements, spaces, 

and facilities required by this document 

and to accessible routes required by 

section 206.2.1 of appendix B to 36 CFR 

part 1191 or section F206.2.1 of 

appendix C to 36 CFR 1191 that connect 

building and facility entrances to public 

streets and sidewalks. 

As proposed in the NPRM, R204.2 

would require a pedestrian access route 

to be provided within sidewalks and 

other pedestrian circulation paths 

located in the public right-of-way. The 

NPRM proposed to define a pedestrian 

circulation path as a prepared exterior 

or interior surface provided for 

pedestrian travel in the public right-ofway. See R105.5. Sidewalks and shared 

use paths are types of pedestrian 

circulation paths. As revised by the 

SNPRM, the term ‘‘pedestrian 

circulation paths’’ in R204.2 includes 

sidewalks and shared use paths. 

R302.3 Continuous Width 

The SNPRM would revise R302.3 to 

read as follows: 

R302.3 Continuous Width. Except as 

provided in R302.3.1 and R302.3.2, the 

continuous clear width of pedestrian 

access routes shall be 1.2 m (4.0 ft) 

minimum, exclusive of the width of the 

curb. 

R302.3.1 Medians and Pedestrian 

Refuge Islands. The clear width of 

pedestrian access routes within medians 

and pedestrian refuge islands shall be 

1.5 m (5.0 ft) minimum. 

R302.3.2 Shared Use Paths. A 

pedestrian access route shall be 

provided for the full width of a shared 

use path. 

As proposed in the NPRM, R302.3 

would require pedestrian access routes 

to be 4 feet wide minimum, except 

R302.3.1 would require pedestrian 

access routes within medians and 

pedestrian refuge islands to be 5 feet 

wide minimum to allow for passing 

space. 

The SNPRM would add a new 

provision at R302.3.2 that would require 

a pedestrian access route to be provided 

for the full width of a shared use path 

since shared use paths are typically twodirectional and path users travel in each 

direction on the right hand side of the 

path, except to pass. The AASHTO 

Guide recommends that two-directional 

shared use paths should be 10 feet wide 

minimum. Where shared use paths are 

anticipated to serve a high percentage of 

pedestrians and high user volumes, the 

AASHTO Guide recommends that the 

paths should be 11 to 14 feet wide to 

enable a bicyclist to pass another path 

user travelling in the same direction, at 

the same time a path user is 

approaching from the opposite 

direction. In certain very rare 

circumstances, the AASHTO Guide 

permits the width of shared use paths to 


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Federal Register / Vol. 78, No. 30 / Wednesday, February 13, 2013 / Proposed Rules 10113 

be reduced to 8 feet. See AASHTO 

Guide, 5.2.1 Width and Clearance. 

R302.5 Grade 

The SNPRM would revise R302.5 to 

read as follows: 

R302.5 Grade. The grade of 

pedestrian access routes shall comply 

with R302.5. 

R302.5.1 Within Street or Highway 

Right-of-Way. Except as provided in 

R302.5.3, where pedestrian access 

routes are contained within a street or 

highway right-of-way, the grade of 

pedestrian access routes shall not 

exceed the general grade established for 

the adjacent street or highway. 

R302.5.2 Not Within Street or 

Highway Right-of-Way. Where 

pedestrian access routes are not 

contained within a street or highway 

right-of-way, the grade of pedestrian 

access routes shall be 5 percent 

maximum. 

R302.5.3 Within Pedestrian Street 

Crossings. Where pedestrian access 

routes are contained within a pedestrian 

street crossing, the grade of pedestrian 

access routes shall be 5 percent 

maximum. 

R302.5.4 Physical Constraints. 

Where compliance with R302.5.1 or 

R302.5.2 is not practicable due to 

existing terrain or infrastructure, rightof-way availability, a notable natural 

feature, or similar existing physical 

constraints, compliance is required to 

the extent practicable. 

R302.5.5 Regulatory Constraints. 

Where compliance with R302.5.1 or 

R302.5.2 is precluded by federal, state, 

or local laws the purpose of which is to 

preserve threatened or endangered 

species; the environment; or 

archaeological, cultural, historical, or 

significant natural features, compliance 

is required to the extent practicable. 

As proposed in the NPRM, R302.5 

would require the grade of pedestrian 

access routes contained within a street 

or highway right-of-way, except at 

pedestrian street crossings, to not 

exceed the general grade established for 

the adjacent street or highway; and the 

grade of pedestrian access routes not 

contained within a street or highway 

right-of-way to be 5 percent maximum. 

R302.5.1 would require the grade of 

pedestrian access routes contained 

within a pedestrian street crossing to be 

5 percent maximum. 

The SNPRM would renumber R302.5 

to include a general provision in R302.5; 

the specific provision for the grade of 

pedestrian access routes contained 

within a street or highway right-of-way 

in R302.5.1; the specific provision for 

the grade of pedestrian access routes not 

contained within a street or highway 

right-of-way in R302.5.2; and the 

specific provision for the grade of 

pedestrian access routes contained 

within a pedestrian street crossing in 

R302.5.3. 

The SNPRM would add new 

provisions at R302.5.4 and R302.5.5 that 

would require compliance with the 

grade provisions in R302.5.1 or R302.5.2 

to the extent practicable where 

compliance is not practicable due to 

physical constraints and where 

compliance is precluded by regulatory 

constraints. We propose to add these 

new provisions in response to public 

comments on the ANPRM, which 

included draft technical provisions for 

grade similar to those proposed in the 

R302.5. The comments noted that 

physical or regulatory constraints may 

prevent full compliance with the grade 

provisions. Physical constraints would 

include existing terrain or 

infrastructure, right-of-way availability, 

a notable natural feature, or similar 

existing physical constraints. Regulatory 

constraints would include federal, state, 

or local laws the purpose of which is to 

preserve threatened or endangered 

species; the environment; or 

archaeological, cultural, historical, or 

significant natural features. 

The proposed provisions are 

consistent with the AASHTO Guide. 

The AASHTO Guide recommends that 

the grade of a shared use path should 

not exceed 5 percent; but, where the 

path is adjacent to a roadway with a 

grade that exceeds 5 percent, the grade 

of the path should be less than or equal 

to the roadway grade. The AASHTO 

Guide notes that grades steeper than 5 

percent are undesirable because ascents 

are difficult for many path users, and 

the descents can cause some path users 

to exceed the speeds at which they are 

competent or comfortable. See AASHTO 

Guide, 5.2.7 Grade. 

R210 Protruding Objects 

The SNPRM would revise R210 to 

read as follows: 

R210.1 General. Protruding objects 

shall comply with the applicable 

requirements in R210. 

R210.2 Pedestrian Circulation Paths 

Other Than Shared Use Paths. Objects 

along or overhanging any portion of a 

pedestrian circulation path other than a 

shared use path shall comply with R402 

and shall not reduce the clear width 

required for pedestrian access routes. 

R210.3 Shared Use Paths. Objects 

shall not overhang or protrude into any 

portion of a shared use path at or below 

2.4 m (8.0 ft) measured from the finish 

surface. 

As proposed in the NPRM, R210 

would require objects along or 

overhanging any portion of a pedestrian 

circulation path to comply with the 

proposed technical provisions for 

protruding objects in R402 and to not 

reduce the clear width required for 

pedestrian access routes. 

The SNPRM would renumber R210 to 

include a general provision in R210.1 

and a specific provision for pedestrian 

circulation paths other than shared use 

paths in R210.2 that would require 

objects along or overhanging any 

portion of the path to comply with the 

proposed technical provisions for 

protruding objects in R402 and to not 

reduce the clear width required for 

pedestrian access routes, as proposed in 

the NPRM. 

The SNPRM would add a new 

provision for shared use paths at R210.3 

that would prohibit objects from 

overhanging or protruding into any 

portion of a shared use path at or below 

8 feet measured from the finish surface. 

The proposed provision for shared 

used paths is consistent with the 

AASHTO Guide. The AASHTO Guide 

recommends 10 feet vertical clearance 

along shared use paths, and 8 feet 

minimum vertical clearance in 

constrained areas. The AASHTO Guide 

recommends that fixed objects should 

not be permitted to protrude within the 

vertical or horizontal clearance of a 

shared use path. See AASHTO Guide, 

5.2.1 Width and Clearance. 

R218 Doors, Doorways, and Gates 

The SNPRM would revise R218 to 

read as follows: 

R218 Doors, Doorways, and Gates. 

Except for shared use paths, doors, 

doorways, and gates provided at 

pedestrian facilities shall comply with 

section 404 of Appendix D to 36 CFR to 

36 CFR part 1191. 

The SNPRM would not apply the 

technical provisions for doors, 

doorways, and gates referenced in R218 

to shared use paths to avoid conflicts 

with the AASHTO Guide. The AASHTO 

Guide does not recommend the use of 

gates or other barriers to prevent 

unauthorized motor vehicle entry to 

shared use paths because gates and 

barriers create permanent obstacles to 

path users. The AASHTO Guide 

recommends alternative methods to 

control unauthorized motor vehicle 

entry to shared use paths, including 

posting regulatory signs prohibiting 

motor vehicle entry and targeted 

surveillance and enforcement. Where 

there is a documented history of 

unauthorized entry by motor vehicles 

despite the use of alternative methods to 

control such entry, the need for bollards 

or other vertical barriers may be 

justified. The AASHTO Guide includes 


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recommended designs for bollards 

where justified. The AASHTO Guide 

recommends the use of one bollard in 

the center of the shared use path. Where 

more than one bollard is used, the 

AASHTO Guide recommends an odd 

number of posts spaced at 6 feet. The 

AASHTO Guide does not recommend 

two posts since they direct opposing 

path users toward the middle, creating 

conflict and the possibility of a head-on 

collision. See AASHTO Guide, 5.3.5 

Other Intersection Treatments. 

R304 Curb Ramps and Blended 

Transitions 

The SNPRM would revise R304.5.1 to 

read as follows: 

R304.5.1 Width. The width of curb 

ramps and blended transitions shall 

comply with 304.5.1.1 or 304.5.1.2, as 

applicable. If provided, flared sides of 

curb ramp runs and blended transitions 

shall be located outside the width of the 

curb ramp run or blended transition. 

R304.5.1.1 Pedestrian Circulation 

Paths Other Than Shared Use Paths. In 

pedestrian circulation paths other than 

shared use paths, the clear width of curb 

ramp runs, blended transitions, and 

turning spaces shall be 1.2 m (4.0 ft) 

minimum. 

R304.5.1.2 Shared Use Paths. In 

shared use paths, the width of curb 

ramps runs and blended transitions 

shall be equal to the width of the shared 

use path. 

As proposed in the NPRM, R304.5.1 

would require the clear width of curb 

ramp runs (excluding flared sides), 

blended transitions, and turning spaces 

to be 4 feet minimum. 

The SNPRM would renumber 

R304.5.1 to include a general provision 

in R304.5.1 that would clarify that if 

flared sides are provided at curb ramps 

and blended transitions, the flared sides 

are to be located outside the width of 

the curb ramp run or blended transition; 

and a specific provision for pedestrian 

circulation paths other than shared use 

paths in R304.5.1.1 that would require 

the clear width of curb ramp runs, 

blended transitions, and turning spaces 

to be 4 feet minimum, as proposed in 

the NPRM. 

The SNPRM would add a new 

provision for shared use paths at 

R304.5.1.2 that would require the width 

of curb ramps runs and blended 

transitions to be equal to the width of 

the shared use path. 

The proposed provision for shared 

used paths is consistent with the 

AASHTO Guide. The AASHTO Guide 

recommends that where curb ramps are 

provided on shared use paths, the curb 

ramps should extend the full width of 

the path, not including any flared sides. 

See AASHTO Guide, 5.3.5 Other 

Intersection Treatments. 

4. Comparison of Proposed Technical 

Provisions Applicable to Shared Use 

Paths and AASHTO Guide 

The proposed technical provisions 

applicable to shared used paths in the 

proposed accessibility guidelines for 

pedestrian facilities in the public rightof-way, as supplemented by the 

SNPRM, and the design criteria for 

shared use paths in the AASHTO Guide 

are compared in the table below. 

Proposed accessibility guidelines for pedestrian facilities in the public 

right-of-way 

Proposed technical provisions applicable to shared use paths 

AASHTO Guide for the development of bicycle facilities (2012) 

Chapter 5: design of shared use paths 

R302.3.2 Shared Use Paths. A pedestrian access route shall be provided for the full width of a shared use path. 5.2.1 Width and Clearance 

The minimum paved width for a two-directional shared use path is 10 ft 

(3.0 m). * * * In very rare circumstances, a reduced width of 8 ft 

(2.4 m) may be used. * * * Wider pathways, 11 to 14 ft (3.4 to 4.2 

m) are recommended in locations that are anticipated to serve a high 

percentage of pedestrians (30 percent or more of the total pathway 

volume) and higher user volumes (more than 300 total users in the 

peak hour). 

R302.5 Grade. The grade of pedestrian access routes shall comply 

with R302.5. 

R302.5.1 Within Street or Highway Right-of-Way. Except as provided 

in R302.5.3, where pedestrian access routes are contained within a 

street or highway right-of-way, the grade of pedestrian access routes 

shall not exceed the general grade established for the adjacent 

street or highway. 

R302.5.2 Not Within Street or Highway Right-of-Way. Where pedestrian access routes are not contained within a street or highway rightof-way, the grade of pedestrian access routes shall be 5 percent 

maximum. 

R302.5.3 Within Pedestrian Street Crossings. Where pedestrian access routes are contained within a pedestrian street crossing, the 

grade of pedestrian access routes shall be 5 percent maximum. 

5.2.7 Grade 

The maximum grade of a shared use path adjacent to a roadway 

should be 5 percent, but the grade should generally match the grade 

of the adjacent roadway. Where a shared use path runs along a 

roadway with a grade that exceeds 5 percent, the sidepath grade 

may exceed 5 percent but must be less than or equal to the roadway 

grade. Grades on shared use paths in independent rights-of-way 

should be kept to a minimum. Grades steeper than 5 percent are undesirable because the ascents are difficult for many path users, and 

the descents can cause some users to exceed the speeds at which 

they are competent or comfortable. * * * Grades on paths in independent rights-of-way should also be limited to 5 percent maximum. 

R302.5.4 Physical Constraints. Where compliance with R302.5.1 or 

R302.5.2 is not practicable due to existing terrain or infrastructure, 

right-of-way availability, a notable natural feature, or similar existing 

physical constraints, compliance is required to the extent practicable. 

R302.5.5 Regulatory Constraints. Where compliance with 302.5.1 or 

302.5.2 is precluded by federal, state, or local laws the purpose of 

which is to preserve threatened or endangered species; the environment; or archaeological, cultural, historical, or significant natural features, compliance is required to the extent practicable. 

R302.6 Cross Slope. Except as provided in R302.6.1 and R302.6.2, 

the cross slope of pedestrian access routes shall be 2 percent maximum. 

R302.6.1 Pedestrian Street Crossings Without Yield or Stop Control. 

Where pedestrian access routes are contained within pedestrian 

street crossings without yield or stop control, the cross slope of the 

pedestrian access route shall be 5 percent maximum. 

5.2.5 Cross Slope 

As described in the previous section, 1 percent cross slopes are recommended on shared use paths, to better accommodate people with 

disabilities and to provide enough slope to convey surface drainage 

in most situations. 


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Federal Register / Vol. 78, No. 30 / Wednesday, February 13, 2013 / Proposed Rules 10115 

Proposed accessibility guidelines for pedestrian facilities in the public 

right-of-way 

Proposed technical provisions applicable to shared use paths 

AASHTO Guide for the development of bicycle facilities (2012) 

Chapter 5: design of shared use paths 

R302.6.2 Midblock Pedestrian Street Crossings. Where pedestrian 

access routes are contained within midblock pedestrian street crossings, the cross slope of the pedestrian access route shall be permitted to equal the street or highway grade. 

R302.7 Surfaces. The surfaces of pedestrian access routes and elements and spaces required to comply with R302.7 that connect to 

pedestrian access routes shall be firm, stable, and slip resistant and 

shall comply with R302.7. 

R302.7.1 Vertical Alignment. Vertical alignment shall be generally 

planar within pedestrian access routes (including curb ramp runs, 

blended transitions, turning spaces, and gutter areas within pedestrian access routes) and surfaces at other elements and spaces required to comply with R302.7 that connect to pedestrian access 

routes. Grade breaks shall be flush. Where pedestrian access routes 

cross rails at grade, the pedestrian access route surface shall be 

level and flush with the top of rail at the outer edges of the rails, and 

the surface between the rails shall be aligned with the top of rail. 

R302.7.2 Vertical Surface Discontinuities. Vertical surface discontinuities shall be 13 mm (0.5 in) maximum. Vertical surface discontinuities between 6.4 mm (0.25 in) and 13 mm (0.5 in) shall be beveled 

with a slope not steeper than 50 percent. The bevel shall be applied 

across the entire vertical surface discontinuity. 

5.2.9 Surface Structure 

Hard, all-weather pavement surfaces are generally preferred over 

those of crushed aggregate, sand, clay, or stabilized earth.* * * Unpaved surfaces may be appropriate on rural paths, where the intended use of the path is primarily recreational, or as a temporary 

measure to open a path before funding is available for paving. Unpaved pathways should be constructed of materials that are firm and 

stable. * * * It is important to construct and maintain a smooth riding 

surface on shared use paths.* * * Utility covers (i.e., manholes) and 

bicycle-compatible drainage grates should be flush with the surface 

of the pavement on all sides.* * * Railroad crossings should be 

smooth and should be designed at an angle between 60 and 90 degrees to the direction of travel to minimize the possibility of falls. 

R302.7.3 Horizontal Openings. Horizontal openings in gratings and 

joints shall not permit passage of a sphere more than 13 mm (0.5 in) 

in diameter. Elongated openings in gratings shall be placed so that 

the long dimension is perpendicular to the dominant direction of travel. 

R302.7.4 Flangeway Gaps. Flangeway gaps at pedestrian at-grade 

rail crossings shall be 64 mm (2.5 in) maximum on non-freight rail 

track and 75 mm (3 in) maximum on freight rail track. 

R210.3 Shared Use Paths. Objects shall not overhang or protrude 

into any portion of a shared use path at or below 2.4 m (8.0 ft) 

measured from the finish surface. 

5.2.1 Width and Clearance 

The desirable vertical clearance to obstructions is 10 ft (3.0 m). Fixed 

objects should not be permitted to protrude within the vertical or horizontal clearance of a shared use path. The recommended minimum 

vertical clearance that can be used in constrained areas is 8 ft (2.4 

m). 

R304.5.1.2 Shared Use Paths. In shared use paths, the width of curb 

ramps runs and blended transitions shall be equal to the width of the 

shared use path. 

R305.1.4 Size. Detectable warning surfaces shall extend 610 mm (2.0 

ft) minimum in the direction of pedestrian travel. At curb ramps and 

blended transitions, detectable warning surfaces shall extend the full 

width of the ramp run (excluding any flared sides). 

5.3.5 Other Intersection Treatments 

The opening of a shared use path at the roadway should be at least 

the same width as the shared use path itself. If a curb ramp is provided, the ramp should be the full width of the path, not including 

any flared sides if utilized.* * * Detectable warnings should be 

placed across the full width of the ramp. 

5. Conflicts Between Shared Path Users 

Public comments submitted in 

response to the ANPRM expressed 

concern about the risk of collisions 

between pedestrians who are blind or 

have low vision and bicyclists who pass 

them too closely at fast speeds, and at 

intersections where a shared use path 

crosses another shared use path or a 

sidewalk. According to the AASHTO 

Guide, the 85th percentile speed for 

recreational bicyclists is 18 miles per 

hour. See AASHTO Guide, 5.2.4 Design 

Speed. The comments noted that 

bicycles are relatively quiet and 

pedestrians who are blind or have low 

vision may not be aware when bicyclists 

are approaching and passing them or 

crossing their path at intersections. 

Pedestrians with other disabilities may 

also have limited awareness of 

approaching bicyclists. For example, 

individuals who are deaf or hard of 

hearing may not be aware of a bicycle 

approaching from behind even when 

riders indicate their presence audibly. 

Individuals with limited mobility who 

may be alert to bicyclists may find it 

difficult to move aside in time to avoid 

collision. The comments recommended 

that traffic on shared use paths be 

regulated and strictly enforced in order 

to protect pedestrians. For example, a 

comment stated that bicyclists should 

be required to always yield to 

pedestrians. The comments also 

recommended design solutions to avoid 

conflicts between users, including 

separate pathways for pedestrians and 

bicyclists; and detectable warning 

surfaces at intersections where a shared 

use path crosses another shared use 

path or a sidewalk. These design 

solutions are discussed below. 

Separate Pathways for Pedestrians and 

Bicyclists 

An organization representing 

individuals who are blind and have 

low-vision stated that ‘‘all shared use 

paths present an unacceptable safety 

risk to blind or visually impaired 

pedestrians unless there is a clear 

separation between pedestrians and 

other motorized and non-motorized 

vehicles including bicyclists.’’ The 

comments noted that path users cannot 

be expected to always follow the ‘‘rules 

of the road’’ and suggested that if paths 

cannot be physically separated that 

lanes for pedestrians and other users 

should be marked tactilely. An 

organization of educators and 

rehabilitation professionals who work 

with individuals who are blind 

suggested that blind pedestrians may 

have considerable difficulty maintaining 

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srobinson on DSK4SPTVN1PROD with PROPOSALS
10116 Federal Register / Vol. 78, No. 30 / Wednesday, February 13, 2013 / Proposed Rules 

3 Department of Transport, ‘‘Tactile Markings for 

Segregated Shared Use by Cyclists and Pedestrians’’ 

[available at: http://www.ukroads.org/webfiles/TAL

%204–90%20Tactile%20Markings%20for%20

Segregated%20Shared%20Use.pdf]; Department for 

Transport, ‘‘Guidance on the Use of Tactile Paving 

Surfaces, ‘‘Chapter 5—Segregated Shared Cycle 

Track/Footway Surface and Central Delineator Strip 

[available at: http://www.dft.gov.uk/publications/

guidance-on-the-use-of-tactile-paving-surfaces/]; 

and Department of Transport,’’ Shared Use Routes 

for Pedestrians and Cyclists,’’ Chapter 6—General 

Design Considerations, 6.18 and 6.19 [available at: 

http://assets.dft.gov.uk/publications/ltn-01–12/

shared-use-routes-for-pedestrians-and-cyclists.pdf]. 

directional shared use paths where all 

users are expected to travel on the right 

hand side of the path in each direction 

and bicyclists pass pedestrians and 

slower moving path users on their left 

hand side. In addition to the 

recommendation to physically separate 

pedestrians and bicyclists, the 

comments suggested that it may be 

necessary to separate the two directions 

of travel within each pathway, 

particularly on busy paths. The 

comments, however, acknowledged that 

determining what volume of users 

should require two-directional 

separation would be a challenge. 

The AASHTO Guide makes a number 

of recommendations to minimize 

conflicts between pedestrians and 

bicyclists. These recommendations 

include required sight triangles to 

ensure that bicyclists have the needed 

yielding distance to avoid conflicts, and 

additional width around horizontal 

curves to allow safe distance between 

users. See AASHTO 5.2.8, Stopping 

Sight Distance. The AAHSTO Guide 

also recommends use of a centerline 

stripe within a path to provide 

directional separation and to indicate 

when passing is permitted. For paths 

with ‘‘extremely heavy volume’’, the 

AASHTO Guide recommends two 

alternatives for segregation of 

pedestrians and bicyclists. The first 

option is to provide separate lanes 

within a single path; pedestrians have a 

bidirectional lane and bicyclists have 

two one-directional lanes. Such 

separation is not recommended unless a 

minimum path width of 15 feet can be 

provided (10 feet for bicycles and 5 feet 

for pedestrians). A second alternative is 

to physically separate user groups, 

particularly where the pathway volume 

is ‘‘extremely heavy’’ and where sites 

and settings, such as one that constricts 

the path width, necessitate divergent 

pathways. Physically separated 

pathways also are recommended where 

the origins and destinations of 

pedestrians and bicyclists differ. The 

AAHSTO Guide notes that both 

alternatives (lane separation and 

physical separation) may not be 

effective unless the volume of bicycle 

traffic is sufficient to discourage 

pedestrians from encroaching into the 

bicycle lanes and that these solutions 

will not necessarily be needed for the 

full length of a shared use path. See 

AASHTO Guide, 5.2.1 Width and 

Clearance. 

We agree with the comments that 

physical separation between pedestrians 

and other users would likely render 

shared use paths safer for, and more 

accessible to, individuals with 

disabilities and others. However, the 

AASHTO Guide does not recommend 

physical separation of user groups 

unless the traffic volume or other 

considerations make separate pathways 

necessary. The AASHTO Guide 

provides little guidance regarding 

methods for determining the point at 

which traffic volume or other 

considerations would justify separation 

of the pathways. In the absence of any 

data on which to base such a 

requirement, we are not proposing to 

require physically separated pathways 

for pedestrians and bicyclists. The 

impact of such a requirement if applied 

to the full length of all shared use paths 

would likely result in many not being 

constructed due to the increased costs 

associated with more land and the need 

to engineer and construct two pathways 

instead of one. 

The comments suggested that 

enhanced signage and warnings, 

including audible signs and tactile 

pavement markings would improve the 

ability of blind pedestrians to remain 

within their lanes. In Great Britain, 

tactile pavement markings are used to 

indicate bicycle and pedestrian lanes. A 

ladder pattern is used to indicate the 

start and end of the pedestrian lane; a 

tramline pattern is used to indicate the 

start and end of the bicycle lane; and a 

tactile dividing line is used to indicate 

the separation between the lanes.3 At 

least one U.S. manufacturer makes 

tactile pavement markings for shared 

use paths. We request comments on 

whether tactile pavement markings have 

been used on any shared use paths in 

the U.S. and the experience with such 

markings. We also request comments on 

other design solutions to reduce 

potential conflicts between pedestrians 

who are blind or have low vision and 

bicyclists. Comments should include 

factors that would make such solutions 

necessary. 

We are considering including an 

advisory section in the final 

accessibility guidelines on separate 

pathways for pedestrians and bicyclists. 

Advisory sections are not mandatory 

requirements but provide guidance for 

entities who want to exceed the 

minimum requirements for accessible 

design. We request comments on 

information to include in the advisory 

section. 

Detectable Warning Surfaces at Shared 

Use Path Intersections 

Detectable warning surfaces consist of 

small truncated domes that are integral 

to a walking surface and that are 

detectable underfoot. The proposed 

accessibility guidelines for pedestrian 

facilities in the public right-of-way 

would require the use of detectable 

warning surfaces to indicate the 

boundary between a pedestrian route 

and a vehicular route where there is a 

curb ramp or blended transition; and the 

boundary of passenger boarding 

platforms at transit stops for buses and 

rail vehicles and at passenger boarding 

and alighting areas at sidewalk or street 

level transit stops for rail vehicles. See 

R208 and R305. 

Because pedestrians who are blind 

would not be aware of bicyclists 

approaching from the left or right hand 

side at intersections, we are considering 

including a requirement in the final 

accessibility guidelines to provide 

detectable warning surfaces where a 

shared use path intersects another 

shared use path or a sidewalk to 

indicate the boundaries where bicyclists 

may be crossing the intersection. The 

edge of the detectable warning surface 

would be installed between 6 inches 

minimum and 12 inches maximum from 

the edge of the intersecting segments of 

the shared use paths and sidewalks. The 

detectable warning surface would 

extend 2 feet minimum in the direction 

of pedestrian travel and the full width 

of the intersecting segments. We request 

comments on this issue. 

6. Regulatory Analyses 

We prepared a preliminary regulatory 

assessment discussing the cost and 

benefits of the proposed accessibility 

guidelines for pedestrian facilities in the 

public right-of-way and an initial 

regulatory flexibility analysis of the 

impacts on small governmental 

jurisdictions with a population of less 

than 50,000 when the NPRM was 

issued. These regulatory analyses are 

available on our Web site at: http:// 

www.access-board.gov/prowac/. 

There is no database available on the 

number of shared use paths in the 

United States. AASHTO surveyed five 

state transportation departments when 

preparing comments on the ANPRM. 

The responding departments reported 

approximately 1,500 to 3,000 miles of 

existing shared use paths in their states. 

The Alliance for Biking and Walking 

surveyed more than 50 large cities about 


srobinson on DSK4SPTVN1PROD with PROPOSALS
Federal Register / Vol. 78, No. 30 / Wednesday, February 13, 2013 / Proposed Rules 10117 

4Alliance for Biking and Walking, ‘‘Bicycling and 

Walking in the United States 2012 Benchmarking 

Report.’’ 

The report is available at: http://www.people

poweredmovement.org/site/. 

their bicycle and pedestrian facilities.4

The average number of miles of existing 

shared use paths per city was 70 miles, 

and ranged from 3.1 miles in Milwaukee 

to 328 miles in New York City. The 

cities used federal funds to construct 

many of the shared use paths. 

As discussed above, the proposed 

technical provisions applicable to 

shared use paths are consistent with the 

AASHTO Guide. State and local 

government entities that design and 

construct shared use paths generally use 

the AASHTO Guide. The SNPRM is not 

expected to increase the costs of 

constructing shared use paths for state 

and local government entities that use 

the AASHTO Guide. 

We request comments on the 

following to assess the impacts of the 

SNPRM: 

• The extent to which the AASHTO 

Guide, or other design guides and 

standards are used for shared use paths. 

• Whether any of the proposed 

provisions applicable to shared use 

paths would result in additional costs 

for design work, materials, earthmoving, 

retaining structures, or other items 

compared to construction practices or 

design guides and standards currently 

used? Commenters are encouraged to 

identify the specific provisions that 

would result in additional costs and 

estimate the additional costs on a per 

mile basis to the extent possible. 

• Whether any of the proposed 

provisions applicable to shared use 

paths would result in any additional 

costs, such as maintenance and 

operational costs, compared to current 

practices? Commenters are encouraged 

to identify the specific provisions that 

would result in additional costs and 

estimate the additional costs on a per 

mile basis to the extent possible. 

• What are the benefits of the 

proposed provisions applicable to 

shared use paths? 

List of Subjects in 36 CFR Part 1190 

Buildings and facilities, Civil rights, 

Individuals with disabilities, 

Transportation. 

Susan Brita, 

Chair. 

[FR Doc. 2013–03298 Filed 2–12–13; 8:45 am] 

BILLING CODE 8150–01–P 

DEPARTMENT OF VETERANS 

AFFAIRS 

38 CFR Part 17 

RIN 2900–AO15 

Use of Medicare Procedures To Enter 

Into Provider Agreements for Extended 

Care Services 

AGENCY: Department of Veterans Affairs. 

ACTION: Proposed rule. 

SUMMARY: This rulemaking proposes to 

amend the medical regulations of the 

Department of Veterans Affairs (VA) to 

allow VA to use Medicare or State 

procedures to enter into provider 

agreements to obtain extended care 

services from non-VA providers. In 

addition, this rulemaking proposes to 

include home health care, palliative 

care, and noninstitutional hospice care 

services as extended care services, when 

provided as an alternative to nursing 

home care. Under this proposed rule, 

VA would be able to obtain extended 

care services for veterans from providers 

who are closer to veterans’ homes and 

communities. 

DATES: Comments must be received by 

VA on or before March 15, 2013. 

ADDRESSES: Written comments may be 

submitted by email through http:// 

www.regulations.gov; by mail or handdelivery to Director, Regulations 

Management (02REG), Department of 

Veterans Affairs, 810 Vermont Avenue 

NW., Room 1068, Washington, DC 

20420; or by fax to (202) 273–9026. 

Comments should indicate that they are 

submitted in response to ‘‘RIN 2900– 

AO15, Use of Medicare Procedures to 

Enter Into Provider Agreements for 

Extended Care Services.’’ Copies of 

comments received will be available for 

public inspection in the Office of 

Regulation Policy and Management, 

Room 1063B, between the hours of 8:00 

a.m. and 4:30 p.m. Monday through 

Friday (except holidays). Please call 

(202) 461–4902 for an appointment. In 

addition, during the comment period, 

comments may be viewed online 

through the Federal Docket Management 

System (FDMS) at http:// 

www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: 

Daniel Schoeps, Office of Geriatrics and 

Extended Care (10P4G), Department of 

Veterans Affairs, 810 Vermont Avenue 

NW., Washington, DC 20420; (202) 461– 

6763. (This is not a toll-free number.) 

SUPPLEMENTARY INFORMATION: 

Subsection (a) of 38 U.S.C. 1710B 

authorizes VA to provide extended care 

services to eligible veterans, including 

geriatric evaluation, nursing home care, 

domiciliary services, and adult day 

health care. Subsection (a) of 38 U.S.C. 

1720 authorizes VA to pay for the 

nursing home care in non-VA facilities 

of eligible veterans and eligible 

members of the Armed Forces. Section 

1720(f) authorizes VA to furnish (in VA 

and non-VA facilities) adult day health 

care to enrolled veterans who would 

otherwise need nursing home care. 

Contracts between VA and these nonVA facilities are currently negotiated 

under Federal contract statutes and 

regulations (including the Federal 

Acquisition Regulation, which is set 

forth at 48 CFR chapter 1; and VA 

Acquisition Regulations, which are set 

forth at 48 CFR chapter 8). 

We propose to establish a new 38 CFR 

17.75, which would implement VA’s 

authority to use Medicare procedures to 

enter into provider agreements. Section 

105 of the Veterans Health Care, Capital 

Asset, and Business Improvement Act of 

2003 (Pub. L. 108–170) amended section 

1720 to authorize VA to use these 

procedures. This amendment, which is 

codified at 38 U.S.C. 1720(c)(1), 

authorizes VA to enter into agreements 

with providers of nursing home care, 

adult day health care, and other 

community-based extended care 

services under ‘‘the procedures 

available for entering into provider 

agreements under section 1866(a) of the 

Social Security Act.’’ Section 1866(a) 

(codified at 42 U.S.C. 1395cc(a)) 

authorizes the Department of Health and 

Human Services to enter into 

agreements with participating Medicare 

providers, and specifies the terms of 

those agreements. 

The plain language of 38 U.S.C. 

1720(c)(1)(B) authorizes VA, in its 

discretion, to furnish extended care 

services through non-VA providers 

using the above-described 

noncontractual mechanism. Moreover, 

the legislative history of Public Law 

108–170 further shows that its purpose 

was to improve VA’s ability to furnish 

eligible veterans with extended care 

services of non-VA providers by using a 

noncontractual mechanism. A Senate 

committee report explains that Medicare 

procedures are simpler and less 

burdensome than VA contracting 

procedures. The report includes the 

following discussion of this provision: 

Under current law, VA is authorized to 

enter into contractual arrangements with 

private providers of extended care services to 

serve the needs of veterans. Federal reporting 

requirements relating to the demographics of 

contractor employees and applicants are 

required to be submitted to the Department 

of Labor under these contractual 

arrangements. The Committee has learned 

that, due to these reporting requirements, 


srobinson on DSK4SPTVN1PROD with PROPOSALS