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[Federal Register Volume 76, Number 181 (Monday, September 19, 2011)]
[Rules and Regulations]
[Pages 57924-57939]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-23576]

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DEPARTMENT OF TRANSPORTATION

49 CFR Parts 37 and 38

[Docket OST-2006-23985]
RIN 2105-AD54

Transportation for Individuals With Disabilities at Intercity, 
Commuter, and High Speed Passenger Railroad Station Platforms; 
Miscellaneous Amendments

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 require intercity, commuter, and high-speed 
passenger railroads to ensure, at new and altered station platforms, 
that passengers with disabilities can get on and off any accessible car 
of the train. Passenger railroads must provide level-entry boarding at 
new or altered stations in which no track passing through the station 
and adjacent to platforms is shared with existing freight rail 
operations. For new or altered stations in which track passing through 
the station and adjacent to platforms is shared with existing freight 
rail operations, passenger railroads will be able to choose among a 
variety of means to meet a performance standard to ensure that 
passengers with disabilities can access each accessible train car that 
other passengers can board at the station. These means include 
providing car-borne lifts, station-based lifts, or mini-high platforms. 
The Department will review a railroad's proposed method to ensure that 
it provides reliable and safe services to individuals with disabilities 
in an integrated manner. The rule also codifies the existing DOT 
mechanism for issuing ADA guidance, modifies provisions concerning the 
carriage of wheelchairs, and makes minor technical changes to the 
Department's ADA rules.

DATES: This rule is effective October 19, 2011.

FOR FURTHER INFORMATION CONTACT: Robert C. Ashby, Deputy Assistant 
General Counsel for Regulation and Enforcement, Department of 
Transportation, 1200 New Jersey Avenue, SE., Room 94-102, Washington, 
DC 20590. (202) 366-9306 (voice); (202) 366-7687 (TDD), 
bob.ashby@dot.gov (e-mail). You may also contact Bonnie Graves, in the 
Office of Chief Counsel, Federal Transit Administration, same mailing 
address, Room E56-306 (202-366-0944), e-mail bonnie.graves@dot.gov; and 
Linda Martin, of the Office of Chief Counsel, Federal Railroad 
Administration, same mailing address, room W31-304 (202-493-6062), e-
mail linda.martin@dot.gov.

SUPPLEMENTARY INFORMATION: This rule makes final a variety of changes 
to the Department's ADA rules based on a notice of proposed rulemaking 
(NPRM) issued February 27, 2006 (71 FR 9761) and the over 360 comments 
to the NPRM. Comments came primarily from members of the transportation 
industry and the disability community. In addition, the Department held 
a public meeting on August 20, 2010, that resulted in in-person 
comments from transportation industry and disability community 
representatives and additional written comments. Generally, speakers at 
the public meeting and post-meeting written comments reiterated points 
made during the principal comment period on the NPRM.
    The final rule modifies the NPRM's approach to ensuring 
nondiscriminatory access to rail service by establishing a performance 
standard that passenger railroads would have to meet at new and altered 
station platforms. The final rule does not require passenger railroads 
to retrofit existing platforms. The performance standard requires that 
passenger railroads ensure that passengers with disabilities can get on 
and off any accessible car that is available to passengers at a station 
platform. At stations where track adjacent to platforms is not shared 
with existing freight service, railroads must provide level-entry 
boarding. At stations where track adjacent to platforms is shared with 
freight railroads, passenger railroads can meet the performance 
standard through a variety of means, including level-entry boarding, 
car-borne lifts, portable station-based lifts, or mini-high platforms 
(with trains making multiple stops at such platforms when necessary). 
Passenger railroads that choose not to provide level-entry boarding at 
new or altered station platforms must get concurrence from the Federal 
Transit Administration (FTA) or Federal Railroad Administration (FRA) 
(or both, as the situation may warrant) for the means they choose to 
meet the performance standard. As part of this process, railroads would 
have to show how the means they chose to meet the performance standard 
ensured the reliability and safety of integrated service to passengers 
with disabilities.
    In other provisions of the final rule, the Department has codified 
the existing Disability Law Coordinating Council (DLCC) as the 
Department's means of coordinating ADA guidance. The final rule also 
modifies the provisions of the

[[Page 57925]]

rule concerning transport of wheelchairs on transit providers' 
vehicles. In addition, the final rule makes minor technical updates and 
changes to provisions of 49 CFR parts 37 and 38.
    The NPRM also proposed to add language, parallel to that in 
Department of Justice (DOJ) regulations, requiring transit providers to 
make reasonable modifications to policies and procedures in order to 
ensure nondiscriminatory service to persons with disabilities. In order 
to avoid delaying issuance of a final rule concerning nondiscriminatory 
access to rail cars while the Department continues to work on a 
regulatory evaluation on the reasonable modification proposal, the 
Department has deferred issuance of a final reasonable modification 
rule at this time. The Department is continuing to work on a final rule 
on this subject.
    The following portion of the preamble discusses each of the issues 
involved in this final rule:

Access to Rail Cars at New or Altered Station Platforms

NPRM

    The NPRM proposed that, at new or altered platforms in intercity 
and commuter rail stations, rail operators would have to ensure that 
passengers with disabilities would be able to board any car of the 
train that was made available for boarding to the general public. The 
NPRM would have required that railroads use level-entry boarding as the 
preferred means of ensuring nondiscriminatory access. In level-entry 
boarding, the height of the platform and the door height of the 
passenger car are aligned so that a passenger using a wheelchair can 
seamlessly move from one to the other (usually with the assistance of a 
bridge plate). Only if the rail operator could demonstrate that this 
approach was infeasible (e.g., because of excessive curvature of the 
track at the station), could the rail operator use other solutions, 
such as lifts or mini-high platforms. The Department said in the NPRM 
that ``the accessibility solution that provides service in the most 
integrated setting should be chosen'' (71 FR 9764).
    This proposal was made to ensure adherence to a basic norm of 
disability nondiscrimination law: that service be provided in the most 
integrated setting feasible. This principle is violated in any 
situation in which a railroad operator effectively limits people with 
disabilities to use of fewer accessible cars than are available to 
other passengers. The Department emphasized in the NPRM that this 
requirement was intended to apply only to new or altered stations, and 
the NPRM did not propose to require retrofit of existing stations for 
the purpose of providing level-entry boarding.

Comments

    Disability community commenters unanimously supported the 
Department's proposal. In the absence of such a provision, they said, 
passengers with disabilities would be denied integrated service, 
instead often being confined to a single car, unlike other passengers. 
Accessibility approaches that limited access to a single car (sometimes 
referred to in comments as the ``cattle car'' approach) were 
unacceptable and discriminatory, they said. Level-entry boarding, 
disability community commenters said, was by far the most satisfactory 
solution, since it provided direct access to rail cars, while 
minimizing the chance of problems caused by malfunctioning or poorly-
maintained equipment or ill-trained or unavailable employees. Among 
other means of access, these commenters generally preferred car-borne 
lifts to station-based lifts, because the latter were viewed as less 
reliable, safe, and secure.
    Railroad industry commenters were just as unanimous in opposing the 
NPRM proposal. They cited a variety of reasons for their opposition. 
Many commenters assumed that the proposal would require level-entry 
boarding to be instituted at all or almost all stations, necessitating 
retrofit at many existing stations. Based on this assumption, many 
commenters predicted enormous costs for what they believed the proposed 
requirement to be. These commenters opposed any retrofit requirements, 
a few suggesting a that level-entry boarding requirement apply only to 
wholly new systems. In addition, some of these commenters believed that 
the NPRM would require lifts or bridge plates to be deployed for every 
car at every station, further driving up personnel costs and delaying 
trains.
    Many commenters, especially freight railroads, asserted that 
platforms providing level-entry boarding would interfere with the 
passage of freight cars through passenger stations, since the width of 
freight cars (especially so-called ``overdimensional'' cars, like those 
used to transport airframe components for aircraft manufacturers or 
large military items) could create conflicts with higher platforms. On 
Department of Defense ``STRACNET'' lines, commenters said, it was 
particularly important to avoid the conflicts between freight cars and 
platforms that the commenters believed would occur under the NPRM 
proposal. According to railroad commenters, some means that could avoid 
such conflicts, like gauntlet or bypass tracks or moveable platform 
edges, were impractical and/or too expensive. Many of these commenters 
preferred a platform no more than 8 inches above top of rail (ATR), a 
height that would never permit level-entry boarding.
    A number of commenters pointed out that more than one passenger 
railroad may use a given platform (e.g., Amtrak and a commuter 
railroad) and that, in many cases, the floor heights of the various 
railroads' equipment are different. It would not be possible, 
commenters said, to have level-entry boarding on the same platform if 
the door height of one type of car using the platform is 25 inches ATR 
and the door height of a second type of car using the platform is 17 
inches ATR. Commenters pointed to wide variations in car door heights 
as precluding any uniform approach to level-entry boarding. Moreover, 
some commenters said, the height of a platform providing level-entry 
boarding could exacerbate problems for passengers resulting from wide 
horizontal gaps between the platform edge and the car.
    Railroad industry commenters had a number of comments about 
accessibility equipment. Some said bridge plates with a slope of one 
inch in height for every eight inches in length were too steep to 
permit independent access for wheelchair access and would require staff 
assistance. For this reason and because of the need to cover wide 
horizontal gaps, there would need to be personnel available in a high 
level platform situation just as there would be if car-borne or 
station-based lifts were used, with attendant costs and potential dwell 
time delays. A number of railroads said that car-borne lifts were in 
use and had many advantages, such as being able to adjust and provide 
access to platforms of various heights. Some railroads rely on station-
based lifts and stated that they are planning to order more of them. A 
number of railroad commenters supported the use of mini-high platforms, 
generally preferring to have only one such platform.
    Some commenters preferred to make only one stop at such a platform 
while others were willing to make multiple stops, as needed. A number 
of commenters expressed concern about the provision of the NPRM saying 
that mini-high platforms and other platform obstructions should be at 
least six feet back from the platform edge, to avoid channeling 
passengers into a narrow,

[[Page 57926]]

unsafe space in front of the obstructions. These commenters said that a 
longer setback would make bridge plates impracticably long; that it was 
not always practicable to fit a six-foot setback into a platform, given 
stairways, columns, or other obstructions; or that a six-foot setback 
could create other safety problems.
    Finally, some railroad commenters opposed the idea that passengers 
with disabilities should be able to access every car of a train that 
was available to other passengers. Some of these commenters said they 
were not aware of significant demand from riders to provide accessible 
boarding at each train car. Others cited concerns that they would need 
costly additions to staff, or that integrated service would lead to 
additional dwell time, interference with schedules, safety problems in 
evacuating passengers with disabilities if they were scattered among 
all the cars of the train, or difficulty in figuring out at which 
stations passengers with disabilities wanted to leave the train. Other 
commenters made legal arguments, such as that the NPRM stretched the 
concept of ``integrated setting'' too far or that Congress, by allowing 
railroads to meet rail car accessibility standards by having one 
accessible car per train, intended to limit railroads' obligation to 
serve disabled passengers to that one car.

DOT Response

    If a railroad provides to people who cannot climb steps access to 
only one car in a multi-car train, it is not providing service in an 
integrated setting. Such service is segregated, not integrated. If 
Person A is a wheelchair user and Person B is ambulatory, denying A the 
opportunity to enter any accessible car of a train that B can enter is 
discriminatory and contrary to the requirements of disability access 
law.
    Commenters' arguments that the ADA permits service to passengers 
with disabilities to be limited to a single car are not persuasive. At 
the time the ADA was enacted, Congress was aware that some railroads 
had legacy equipment that was inaccessible. While Congress required 
railroads to acquire only accessible new cars after the ADA went into 
effect, Congress did not wish to make railroads retrofit or replace 
large numbers of old, inaccessible cars. Consequently, Congress 
required that, by July 26, 1995, railroads provide at least one 
accessible car per train, while not having to make all existing cars 
accessible or obtain accessible replacement cars by that date. This was 
solely an interim equipment requirement, which virtually all U.S. 
intercity and commuter railroads have met. Meeting this equipment 
requirement does not negate the obligations of railroads, under the ADA 
and section 504, to provide service in a nondiscriminatory and 
integrated manner.
    In large part because of the ADA requirement that all new cars meet 
these accessibility requirements (i.e., compliance with the 
requirements of 49 CFR part 38, the Department's accessibility 
standards for transportation vehicles), a significant portion of cars 
on American railroads are now accessible. The point of the requirement 
to obtain accessible new rail cars is to make sure that ultimately each 
car on a train is accessible to and usable by people with disabilities, 
including those who cannot climb steps. For a railroad to say to a 
passenger with a disability, in effect, that ``we have a car that meets 
accessibility requirements for use by passengers with disabilities but 
we will not provide any way of letting you use the accessible car'' 
would undermine the purpose of the requirement to obtain accessible 
cars.
    Like the NPRM, the final rule requires operators to provide access 
only to accessible, available cars that people with disabilities are 
trying to access at a given station. If a train has eight accessible 
cars, and wheelchair users want to enter only cars 2 and 7 (see 
discussion of passenger notification below), then railroad personnel 
need to deploy lifts or bridge plates only at cars 2 and 7, not at the 
other cars. Concerns expressed in comments about the number of new 
personnel that would have to be hired appear to have been based on 
misunderstandings of this point. Similarly, the rule requires operators 
to provide access only to available cars at a station. If a train has 
eight accessible cars, but the platform only serves cars 1 through 6, 
then railroad personnel need to deploy lifts or bridge plates only at 
cars that people with disabilities are trying to access and that are 
available to all passengers. We would also point out that wheelchair 
positions on rail passenger cars are intended to serve wheelchair 
users, and railroad operators should take steps to ensure that these 
spaces are available for wheelchair users and not for other uses. For 
example, it would be contrary to this rule for a wheelchair user to be 
told that he or she could not use car 7 because the wheelchair spaces 
were filled with other passengers' luggage from a previous stop. We 
would also point out that railroads are not required to retrofit train 
cars, since railroads can choose among a variety of approaches to meet 
the performance standard.
    In order to ensure that access was provided, passengers would have 
to notify railroad personnel. For example, if a passenger at a station 
wanted to use a station-based lift to access car 6, the passenger would 
request the use of car 6 and railroad personnel would deploy the lift 
at that car. Likewise, at a station using a mini-high platform, a 
passenger on this platform would inform train personnel that he or she 
wanted to enter car 5, whereupon the train would pull forward so that 
car 5 was opposite the mini-high platform. We contemplate that these 
requests would be made when the train arrives, and railroads could not 
insist on advance notice (e.g., the railroad could not require a 
passenger to call a certain time in advance to make a ``reservation'' 
to use a lift to get on a particular car). As part of its submission to 
FTA or FRA, the railroad would describe the procedure it would use to 
receive and fulfill these requests.
    The NPRM did not propose to require any stations to be retrofitted 
for level-entry boarding. The proposal concerning level-entry boarding 
was always forward-looking, intended to apply to stations constructed 
or altered after the rule went into effect. The final rule makes this 
point explicit. In addition, the NPRM did not propose to require level-
entry boarding as a solution in every instance, permitting other 
solutions where level-entry boarding was infeasible. Consequently, 
comments projecting enormous costs based on the assumption that the 
NPRM proposed requiring extensive retrofitting of existing stations to 
provide level-entry boarding everywhere were based on a 
misunderstanding of the NPRM. Like the NPRM, the final rule applies to 
new construction and alterations and does not require retrofitting.
    Many of the comments opposing level-entry boarding asserted that 
higher platforms would interfere with actual or potential freight 
movements. The FRA has reviewed these claims and has determined that 
while there could be some risk to a railroad employee riding on the 
bottom step of some freight equipment with platforms at the 15-inch 
level, this risk is normally addressed in the freight railroad's 
operating rules and would be taken into consideration during the review 
conducted by FRA for each new or altered platform. Having examined the 
dimensions of even the overwidth freight cars used to transport loads 
such as defense cargoes and airplane components, FRA found that there 
are no freight cars that would conflict with level-entry boarding 
platforms at 15-17 inches ATR. In the Northeast Corridor, where long-
existing platforms are often 48 inches ATR,

[[Page 57927]]

solutions to overdimensional freight movements on shared track that 
passes through stations are already in place.
    Nevertheless, it is clear from comments to the docket of this 
rulemaking that freight railroads are adamant that they will not permit 
passenger railroads to construct platforms more than 8 inches ATR 
adjacent to tracks they own and control and are shared with passenger 
railroads. The Department does not currently have legal tools to 
overcome this refusal. In particular, section 37.57 of the Department's 
ADA regulation, ``Required cooperation,'' applies to owners or persons 
in control of a station, not to owners or persons in control of track 
that passes through a station.
    For this reason, and to avoid the potentially high costs of 
building gauntlet or bypass tracks at existing stations being altered, 
the Department is modifying the NPRM's proposal. The final rule will 
establish a performance standard: individuals with disabilities, 
including individuals who use wheelchairs, must have access to all 
accessible cars in each train using the station. This performance 
standard will apply at stations where construction or alteration of 
platforms begins 135 days or more after the rule goes into effect. The 
requirement is prospective, and section 37.42 does not require retrofit 
of existing stations (though compliance with existing disability 
nondiscrimination requirements not being altered in this final rule is 
still required). To meet this performance standard on lines or systems 
where track passing through stations and adjacent to platforms is 
shared with freight railroad traffic, passenger railroads that do not 
choose to provide level-entry boarding may, after obtaining FRA and/or 
FTA approval, use car-borne lifts, mini-high platforms (making multiple 
stops where necessary to accommodate passengers wishing to use 
different cars of the train), or portable station-based lifts.
    On commuter, intercity, or high-speed rail lines or systems in 
which track passing through stations and adjacent to platforms is not 
shared with existing freight rail operations, the performance standard 
must be met by providing level-entry boarding to all accessible cars in 
each train that serves new or altered stations on the line or system. 
For example, if a new commuter or high-speed rail line or system is 
being built, and the track adjacent to platforms is not shared with 
freight traffic (e.g., it is a passenger rail-only system, or a bypass 
or gauntlet track exists for freight traffic), then the stations would 
have to provide level-entry boarding. Other options would not be 
permitted.
    If a platform being constructed or altered is not adjacent to track 
used for freight, but the track and platform are used by more than one 
passenger railroad (e.g., Amtrak and a commuter railroad), the 
possibility of the platform serving cars with different door heights 
exists. In this situation, the level-entry boarding requirement 
continues to exist. Generally, the platform should be level with 
respect to the system that has the lower boarding height. This is 
because it is not good safety practice to make passengers step down (or 
be lifted down or use ramps to get down) to board a train. For example, 
if Amtrak operates through a station with cars that are 15 inches ATR, 
and a commuter railroad uses the same platform with cars that are 25 
inches ATR, the platform would be level with respect to the Amtrak 
cars. The commuter railroad would have to provide another means of 
access, such as lifts. In all such cases where mixed rail equipment 
will be used, the rule requires that both FRA and FTA be consulted by 
the railroads involved. As in other cases where level-entry boarding is 
not used, the railroad must obtain FTA and/or FRA approval for the 
means the railroad wants to use to meet the performance standard.
    The performance standard approach avoids the objections to the NPRM 
based on allegations of conflict between higher-level platforms and 
freight traffic, since platforms being constructed or altered in 
stations where tracks adjacent to the platforms are shared with freight 
would not have to provide level-entry boarding. Other solutions could 
be used at such stations.
    The details of the ``track passing through stations and adjacent to 
platforms is shared with existing freight rail operations'' language 
are important. There may be some stations that serve lines that are 
shared by passenger and freight traffic. However, if freight traffic 
does not actually go through a particular station (e.g., because 
freight traffic bypasses the station), level-entry boarding is still 
required. There could also be situations in which multiple tracks pass 
through a station, and freight traffic uses only a center track, not a 
track which is adjacent to a platform. In such cases, the new or 
altered platform would have to provide level-entry boarding. It is 
important to note that this language refers to ``existing'' freight 
rail traffic, as opposed to the possibility that freight traffic might 
use the track in question at some future time. Likewise, if freight 
trains have not used a track passing through a station in a significant 
period of time (e.g., the past 10 years), the Department does not view 
this as constituting ``existing freight rail traffic.''
    Where a railroad operator wishes to provide access to its rail cars 
through a means other than level-entry boarding, it is essential that 
it provide an integrated, safe, timely, reliable, and effective means 
of access for people with disabilities. A railroad is not required to 
choose what might be regarded as a more desirable or convenient method 
over a less desirable or convenient method, or to choose a more costly 
option over a less costly option. What a railroad must do is to ensure 
that whatever option it chooses works. However, to assist railroads in 
choosing the most suitable option, the rule requires that a railroad 
not using level-entry boarding, if it chooses an approach other than 
the use of car-borne lifts, must perform a comparison of the costs 
(capital, operating, and life-cycle costs) of car-borne lifts versus 
the means preferred by the railroad operator, as well as a comparison 
of the relative ability of each of the two alternatives (i.e., car-
borne lifts and the railroad's preferred approach) to provide service 
to people with disabilities in an integrated, safe, reliable, and 
timely manner. The railroad must submit this comparison to FTA and FRA 
at the same time as it submits its plan to FRA and/or FTA, as described 
below, although the comparison is not part of the basis on which the 
agencies would determine whether the plan meets the performance 
standard. In creating this comparison, railroads are strongly 
encouraged to consult with interested individuals and groups and to 
make the comparison readily available to the public, including 
individuals with disabilities.
    To ensure that the railroad's chosen option works, the railroad 
must provide to FRA or FTA (or both), as applicable, a plan explaining 
how its preferred method will provide the required integrated, safe, 
reliable, timely and effective means of access for people with 
disabilities. The plan would have to explain how boarding equipment 
(e.g., bridge plates lifts, ramps, or other appropriate devices) and/or 
platforms will be deployed, maintained, and operated, as well as how 
personnel will be trained and deployed to ensure that service to 
individuals with disabilities was provided in an integrated, safe, 
timely, effective, and reliable manner. FTA and/or FRA will evaluate 
the proposed plan and may approve, disapprove, or modify it. It should 
be emphasized that the purpose of FTA/FRA review of this plan is to 
make sure that whatever approach a railroad chooses will in fact work; 
that is, it will

[[Page 57928]]

really result in an integrated, safe, reliable, timely and effective 
means of access for people with disabilities. If a plan, in the view of 
FRA or FTA, fails to meet this test, then FTA or FRA can reject it or 
require the railroad to modify it to meet the objectives of this 
provision.
    In considering railroads' plans, the agencies will consider factors 
including, but not limited to, how the proposal maximizes integration 
of and accessibility to individuals with disabilities, any obstacles to 
the use of a method that could provide better service to individuals 
with disabilities, the safety and reliability of the approach and 
related technology proposed to be used, the suitability of the means 
proposed to the station and line and/or system on which it would be 
used, and the adequacy of equipment and maintenance and staff training 
and deployment. FTA and FRA will evaluate railroads' plans with respect 
to whether they achieve the objectives of the performance standard.
    For example, some commenters have expressed significant concerns 
about the use of station-based lifts, noting instances in which such 
lifts have not been maintained in a safe and reliable working order. A 
railroad proposing to use station-based lifts would have to describe to 
FTA or FRA how it would ensure that the lifts remained in safe and 
reliable operating condition (such as by cycling the lift daily or 
other regular maintenance) and how it would ensure that personnel to 
operate the lift were available in a timely manner to assist passengers 
in boarding a train. This demonstration must clearly state how the 
railroad expects that its operations will provide safe and dignified 
service to the users of such lifts.
    FRA and FTA are committed to providing timely responses to 
railroads' proposals. Consequently, FRA/FTA will provide initial 
written responses within 30 days of receiving railroads' written 
proposals. These responses will say either that the submission is 
complete or that more information is needed. Once the requested 
additional information is received, and/or a complete package has been 
made available to FTA/FRA for review, as acknowledged by FRA/FTA in 
writing, FRA/FTA will provide a substantive response accepting, 
rejecting, or modifying the proposal within 120 days. There may be 
circumstances (e.g., the necessity for site visits, engaging a 
consultant to assist FRA/FTA, consultation with other agencies such as 
the Access Board or the Department of Justice) that will force FRA/FTA 
to take longer to respond. In such a case, FRA/FTA will provide a 
written communication to the railroad setting forth the reasons for the 
delay and an estimate of the additional time (not to exceed an 
additional 60 days) that FRA/FTA expect to take to finalize a 
substantive response to the proposal. While the Department is committed 
to meeting these timeframes, delays in responding do not imply approval 
of a railroad's plan.
    Railroads have the responsibility of making sure that their means 
of providing access work in practice as well as in concept. Railroads 
are reminded that FTA and FRA conduct regular compliance reviews of 
their grantees, and take enforcement actions if they find noncompliance 
with a rule. For example, if it appears that, in practice, a railroad 
is unable successfully to provide safe and reliable service using 
station-based lifts, even if its plans for doing so had been approved 
(e.g., the railroad is unable to deliver on a consistent basis the 
service to which it has committed in its approved plan, because its 
maintenance or staffing efforts are inadequate), then the Department 
can find the railroad in noncompliance with its ADA and section 504 
obligations and require the railroad to take corrective action to 
ensure that the performance standard is met. The Department also 
retains the ability to propose additional rulemaking to address 
problems in railroads' performance and the methods railroads use to 
ensure nondiscriminatory access to their services.
    In existing stations where it is possible to provide access to 
every car without station or rail car retrofits, rail providers that 
receive DOT financial assistance should be mindful of the requirement 
of 49 CFR 27.7(b)(2), which requires that service be provided ``in the 
most integrated setting that is reasonably achievable.'' For example, 
if a set of rail cars has car-borne lifts that enable the railroad to 
comply with section 37.42 at new or altered station platforms, it is 
likely that deployment of this lift at existing stations will be 
reasonably achievable. The use of a station-based lift at an existing 
station to serve more than one car of a train may well also be 
reasonably achievable (e.g., with movement of the lift, as needed). 
Similarly, it is likely that, in a system using mini-high platforms, 
making multiple stops at existing stations would be reasonably 
achievable. Such actions would serve the objective of providing service 
in an integrated setting. In addition, in situations where a railroad 
and the Department have negotiated access to every accessible car in an 
existing system (e.g., with car-borne lifts and mini-high platforms as 
a back-up), the Department expects the railroads to continue to provide 
access to every accessible car for people with disabilities. As noted 
above, passengers with disabilities would request access to the 
particular car they were interested in boarding where a means like a 
mini-high platform or station-based lifts was being used.
    The Department is also providing, in section 37.42(f), for a 
maximum gap allowable for a platform to be considered ``level.'' 
However, this maximum is not intended to be the norm for new or altered 
platforms. The Department expects transportation providers to minimize 
platform gaps to the greatest extent possible by building stations on 
tangent track and using gap-filling technologies, such as moveable 
platform edges, threshold plates, platform end boards, and flexible 
rubber fingers on the ends of platforms. The Department encourages the 
use of Gap Management Plans and consultation with FRA and/or FTA for 
guidance on gap safety issues.
    The final rule includes the NPRM's proposal for a safety 
requirement concerning the setback of structures and obstacles (e.g., 
mini-high platforms, elevators, escalators, and stairwells) from the 
platform edge. This provision is based on long-standing FRA 
recommendations and the expertise of the Department's staff. The 
Department believes that it is inadvisable, with the exception of 
boarding and alighting a train, to ever have a wheelchair operate over 
the two-foot wide tactile strips (i.e., detectable warning surfaces) 
that are parallel to the edge of the platform. This leaves a four-foot 
distance for a person in a typical wheelchair to maneuver safely past 
other people on the platform, stair wells, elevator shafts, etc. It 
also is important because a wheelchair user exiting a train at a door 
where there is not a six-foot clearance would likely have difficulty 
exiting and making the turn out of the rail car door. The requirement 
would also avoid channeling pedestrians through a relatively narrow 
space where, in crowded platform conditions, there would be an 
increased risk of someone falling off the edge of the platform. Since 
the rule concerns only new and altered platforms, the Department does 
not believe the cost or difficulty of designing the platforms to 
eliminate this hazard will be significant.
    Even where level-entry boarding is provided, it is likely that, in 
many instances, bridge plates would have to be used to enable 
passengers with disabilities to enter cars, because of the

[[Page 57929]]

horizontal gaps involved. Section 38.95(c)(5), referred to in the 
regulatory text, permits various ramp slopes for bridge plates, 
depending on the vertical gap in a given situation. In order to 
maximize the opportunity of passengers to board independently, the 
Department urges railroads to use the least steep ramp slope feasible 
at a given platform.

Mobility Device Size and Type

NPRM

    Under the Department's current ADA rule, transportation providers 
are required to permit only wheelchairs meeting the definition of a 
``common wheelchair'' onto their vehicles. A common wheelchair is 
defined by weight (not more than 600 pounds, including the occupant) 
and dimensional (30 x 48 inches) criteria. The ``common wheelchair'' 
originated as a design concept, answering the question of what a 
vehicle lift should be designed to accommodate, but has also been 
applied as an operational concept, permitting a transit operator to 
exclude from its vehicles wheelchairs that do not meet the weight and 
dimensional criteria. This effect of the current regulation was 
confirmed in Kiernan v. Utah Transit Authority (339 F.3d 1217, 10th 
Cir., 2003), where the court determined that the transit authority 
could exclude from its vehicles a wheelchair that did not meet the 
common wheelchair criteria, even if the vehicle could physically 
accommodate the device. The NPRM asked for comment on this and related 
issues.

Comments

    As the Department is aware and as many commenters pointed out in 
response to the NPRM question on the subject, in the nearly 20 years 
since the Department issued its ADA regulation there has been a 
proliferation of different types of wheelchairs, including some models 
that may not meet the common wheelchair criteria. Most disability 
community commenters believed that the operational use of the concept 
was an unnecessary obstacle to transportation opportunities for people 
with mobility disabilities and that this use of the term should be 
dropped. They preferred a requirement that would direct transportation 
providers to carry any wheelchair that the provider's equipment could 
in fact accommodate. For example, if a lift could carry an 800-pound 
wheelchair, and there was room on the vehicle for the wheelchair, the 
provider would have to permit the device onto the vehicle.
    Some commenters cited problems that transportation providers' 
implementation of the common wheelchair provision had caused. For 
example, someone who had a wheelchair that reclined, but did not 
recline it when boarding, was told she could not bring the wheelchair 
on board a paratransit vehicle because, when reclined, it exceeded the 
dimensional envelope, even though there was room for it to recline. 
Other passengers complained of being denied rides because a footrest 
exceeded the dimensional envelope or because their weight, combined 
with that of their wheelchair, exceeded the common wheelchair weight 
limit, even though they had ridden the system's vehicles for years 
without any problem.
    Transportation providers generally preferred to retain either the 
operational effect of the common wheelchair definition or to use some 
other way of limiting the size and weight of wheelchairs brought onto 
the vehicle. Some commenters mentioned safety and potential damage to 
vehicles and equipment as concerns if larger or more irregularly shaped 
wheelchairs were permitted. The difficulty of securing such wheelchairs 
was one concern that commenters mentioned. In addition to weight, some 
commenters mentioned clearance concerns in the vehicle, such as 
difficulty in getting a wheelchair around a wheel well, driver station, 
or fare box. A number of transportation providers asked for flexibility 
in terms of the type of mobility aids they are required to carry.
    A number of transportation commenters suggested that a longer-term 
solution to the problem would be to work with wheelchair manufacturers 
and the Department of Health and Human Services to establish standards 
for wheelchairs (or at least wheelchairs that would be purchased via 
Medicare or Medicaid). Such standards, they suggested, could address 
not only size and weight but also the ability of wheelchairs to be 
secured on vehicles. Additional research and consultation with 
stakeholders was also recommended.
    In September 2005, the Department issued guidance concerning non-
traditional mobility devices. It said, in essence, that under existing 
DOT nondiscrimination rules, regulated entities must accept such non-
traditional devices (e.g., Segways) as long as the devices could be 
physically accommodated and accepting them did not cause a direct 
threat to safety. Some disability community commenters supported this 
approach, citing the increased mobility that these devices offered 
persons with mobility impairments, while some transportation industry 
commenters did not want to have to accept such devices, based on 
concerns about safety, space, and securement.

DOT Response

    The Department continues to believe that standards based on Access 
Board guidelines for transportation vehicles are the appropriate basis 
for requirements pertaining to the design and construction of vehicles. 
To the extent that Access Board vehicle guidelines (currently in a 
process of revision) retain the ``common wheelchair'' definition, or 
another set of specifications for lifts and other aspects of vehicles, 
the Department anticipates continuing to incorporate those guidelines 
for vehicle design and construction for purposes of 49 CFR part 38. 
(See also 36 CFR part 1191.) The Department is not contemplating any 
actions that would require transportation providers and manufacturers 
to modify existing vehicles or design and construct new vehicles in a 
way that departs from standards incorporating Access Board guidelines.
    Operational requirements are a different matter. If a 
transportation provider has a vehicle and equipment that meets or 
exceeds the Access Board's guidelines, and the vehicle and equipment 
can in fact safely accommodate a given wheelchair, then it is not 
appropriate, under disability nondiscrimination law, for the 
transportation provider to refuse to transport the device and its user. 
Consequently, the final rule deletes the operational role of the 
``common wheelchair'' design standard and deletes the sentence 
concerning ``common wheelchair'' from the part 37 definition of 
wheelchair, as well as from section 37.165(b) and the Appendix D 
explanatory text. We are also making one other modification in the 
definition of ``wheelchair,'' changing ``three- or-four wheeled 
devices'' to ``three- or more-wheeled devices.'' This change recognizes 
that, in recent years, devices that otherwise resemble traditional 
wheelchairs may have additional wheels (e.g., two guide wheels in 
addition to the normal four wheels, for a total of six). The Department 
believes that devices of this kind should not be excluded from the 
definition of ``wheelchair'' solely on the basis of a larger number of 
wheels.
    With respect to the size and weight of wheelchairs, the final rule 
requires transportation providers to carry a wheelchair and its user, 
as long as the lift can accommodate the size and weight of the 
wheelchair and its user

[[Page 57930]]

and there is space for the wheelchair on the vehicle. However, a 
transportation provider would not be required to carry a wheelchair if 
in fact the lift or vehicle is unable to accommodate the wheelchair and 
its user, consistent with legitimate safety requirements.
    For example, suppose that a bus or paratransit vehicle lift will 
safely accommodate an 800-pound wheelchair/passenger combination, but 
not a combination exceeding 800 pounds. The lift is one that exceeds 
the part 38 design standard, which requires lifts to be able to 
accommodate a 600-pound wheelchair/passenger combination. The 
transportation provider could limit use of that lift to a combination 
of 800 pounds or less. Likewise, if a wheelchair or its attachments 
extend beyond the 30 x 48 inch footprint found in part 38's design 
standards but fit onto the lift and can fit into the wheelchair 
securement area of the vehicle, the transportation provider would have 
to accommodate the wheelchair. However, if such a wheelchair was of a 
size that would block an aisle or not be able to fully enter a rail 
car, thereby blocking the vestibule, and interfere with the safe 
evacuation of passengers in an emergency, the operator could deny 
carriage of that wheelchair, if doing so was necessary as the result of 
a legitimate safety requirement.
    This approach will not force transportation providers to redesign 
or modify vehicles, but it will prevent arbitrary actions of the kind 
mentioned by commenters. In addition, transportation providers should 
be aware that to be a legitimate safety requirement, any limitation 
must be based on actual risks, not on mere speculation, stereotypes, or 
generalizations about individuals with disabilities or their mobility 
devices. The transportation provider bears the burden of proof of 
demonstrating that any limitation on the accommodation of a wheelchair 
is based a legitimate safety requirement.
    Beginning with the Department's initial ADA regulation in 1991, the 
Department has taken the position that a transportation provider cannot 
deny transportation to a wheelchair or its user on the ground that the 
device cannot be secured or restrained satisfactorily by the vehicle's 
securement system (see 49 CFR 37.165(d)). Consequently, a transit 
provider could not, consistent with this regulatory requirement, impose 
a limitation on the transportation of wheelchairs and other mobility 
aids based on the inability of the securement system to secure the 
device to the satisfaction of the transportation provider. The 
Department agrees that it would be useful for wheelchair manufacturers 
and the Department of Health and Human Services to work to design 
wheelchairs that are more compatible with vehicle securement devices, 
and with third-party funding resources such as Medicare and Medicaid to 
ensure that they are eligible under their guidelines. However, the 
Department of Transportation does not have authority to compel such 
developments, and it would be inconsistent with nondiscrimination 
requirements to allow transportation providers to deny service to 
people who use wheelchairs just because particular devices may be 
problematic from a securement point of view.
    We recognize that persons with mobility disabilities use devices 
other than wheelchairs to assist with locomotion. Canes, crutches, and 
walkers, for example, are often used by people whose mobility 
disabilities do not require use of a wheelchair. These devices must be 
accepted under the same conditions as wheelchairs, just as DOJ rules 
require in other contexts. However, the Department does not interpret 
its rules to require transportation providers to accommodate devices 
that are not primarily designed or intended to assist persons with 
mobility disabilities (e.g., skateboards, bicycles, shopping carts), 
apart from general policies applicable to all passengers who might seek 
to bring such devices into a vehicle. Similarly, the Department does 
not interpret its rules to require transportation providers to permit 
an assistive device to be used in a way that departs from or exceeds 
the intended purpose of the device (e.g., to use a walker, even one 
with a seat intended to allow temporary rest intervals, as a wheelchair 
in which a passenger sits for the duration of a ride on a transit 
vehicle).
    With respect to Segways or other non-traditional powered devices 
that do not fit the definition of ``wheelchair,'' the Department's 
position has been influenced by the approach taken by the DOJ in its 
recently-issued ADA rules. DOJ has created the category of ``other 
power-driven mobility devices'' (OPMDs). DOJ does not require OPMDs 
necessarily to be accommodated in every instance in which a wheelchair 
must be accommodated, but provides that entities must allow such 
devices unless the entity demonstrates that allowing the device would 
be inconsistent with legitimate safety requirements. Legitimate safety 
requirements must be based on actual risks, not on mere speculation, 
stereotypes, or generalizations about individuals with disabilities or 
about the devices they use for mobility purposes. We believe that 
language based on the DOJ approach is a good way of addressing the 
issues discussed by the Department in its September 2005 guidance and 
in comments to the docket for this rulemaking. Consequently, we are 
modifying the 2005 guidance to follow the DOJ approach.
    We note that this approach does not give transportation providers 
unfettered discretion to deny transportation to Segways and other 
OPMDs. Transportation providers should accept such devices in most 
cases. Only if the transportation provider can demonstrate--with 
respect to a particular type of device in a specific facility or type 
of vehicle--that it would be infeasible (e.g., the device could not 
physically fit onto a vehicle) or contrary to legitimate safety 
requirements (e.g., prohibiting devices powered by internal combustion 
engines) could it be appropriate for a transportation provider to deny 
transportation to the OPMD and its user. The transportation provider 
bears the burden of proof for demonstrating that any limitation on the 
accommodation of an OPMD is based on a legitimate safety requirement.

Definition of ``Direct Threat''

NPRM

    The definition of ``direct threat'' has long been a key provision 
of this and other disability nondiscrimination regulations. ``Direct 
threat'' has been the Department's primary reference point in deciding 
several issues in which there has been tension between the safety 
concerns of transportation providers and the rights of persons with 
disabilities to access public transportation, such as prohibitions on 
wheelchair users being able to use certain bus stops, use of lifts by 
standees, and carriage of three-wheeled scooters that are not easily 
secured by existing bus securement devices. A key element of the 
concept is that, to justify a limitation on individuals with 
disabilities, there must be a significant threat to others--as distinct 
from to the individual with a disability--that cannot be eliminated by 
a modification of policies, practices or procedures, or by the 
provision of auxiliary aids or services. The NPRM indicated that the 
Department intended to add a definition of direct threat to 49 CFR 37.3 
that would track the definition in DOJ's regulation, which defines 
direct threat in terms of a threat to the health and safety of others.

[[Page 57931]]

Comments

    Disability community commenters favored retaining the requirement 
that a direct threat can only be a threat to the health or safety of 
others. A number of transportation industry commenters, however, 
believed that the definition should be modified to permit consideration 
of threats to the safety of the disabled person him- or herself. Both 
in the interest of protecting passengers with disabilities from 
potential harm and of protecting the transit authority from potential 
liability, these commenters believed that transportation providers 
should be able to impose certain restrictions on the transportation of 
some passengers with disabilities if there was danger to the passengers 
themselves. One example that some commenters cited was a paratransit 
passenger with dementia who, once dropped off at his or her 
destination, could become disoriented and wander off if no one at the 
destination was present to take care of him or her.

DOT Response

    The Department has determined that in the transportation context 
the appropriate definition of direct threat is one that only considers 
safety threats to others. This approach is consistent with DOJ's 
regulations. Therefore, we will define direct threat as ``a significant 
risk to the health or safety of others that cannot be eliminated by a 
modification of policies, practices or procedures, or by the provision 
of auxiliary aids or services'' and add this definition to our 
regulation.
    We recognize that the situation of paratransit service to a person 
with dementia or another severe cognitive impairment presents unique 
problems. The primary risk (e.g., of becoming disoriented and wandering 
away) is to the passenger, rather than to others, but, in the absence 
of a personal care attendant or a contact with someone at the 
destination point, the risk to the safety, or even the life, of the 
passenger could be very high. This is an issue that should be addressed 
during the application process and eligibility interview. At that time, 
the paratransit provider, the applicant, and the person responsible for 
the applicant's well-being should discuss the parameters of paratransit 
service, the paratransit agency's policies regarding attended 
transfers, and the procedures that will be followed in the event that 
there is no one available to meet the applicant when the vehicle 
arrives.
    The Department has added language to Appendix D of part 37 to make 
it clear that the concept of ``direct threat'' in this rule is intended 
to be interpreted consistently with the same term in DOJ rules.

Other Definitions

    The DOJ published, on September 15, 2010, new ADA Title II and 
Title III regulations (75 FR 56164). These rules define certain terms, 
such as ``disability,'' ``auxiliary aids'' and ``service animals,'' 
differently from the existing definitions in part 37. Generally, these 
definitional differences are at the level of detail and wording, and 
the definitions are not vastly different in concept. The Department 
will consider whether, in the future, to propose changes to part 37 to 
parallel the new DOJ definitions. Meanwhile, the existing DOT 
definitions continue in effect. Regulated entities should not change 
policies based on the DOJ rules, since it is the DOT rules that apply 
to them.

Counting Trip Denials and Missed Trips

NPRM

    In the preamble to the NPRM, the Department discussed how 
complementary paratransit systems should count trip denials and missed 
trips. This is an important issue because the rate of trip denials can 
affect determinations by the Department and, in some cases, the courts 
about whether a paratransit operator is complying with its obligations 
under the Department's paratransit service criteria. Too many denials 
can result in a finding that the operator either has a capacity 
constraint or is otherwise falling short of its obligation to provide 
timely service to eligible passengers.
    In many cases, there is no difficulty in determining how to count 
trip denials. If a passenger asks for a one-way trip from Point A to 
Point B and is told that a ride is unavailable, or the vehicle does not 
show up, then one trip has been denied or missed. (A denied trip is one 
the provider declines to schedule for an eligible rider. A missed trip 
is one that the provider scheduled for which the vehicle never arrives, 
or arrives outside of the pickup window, and the passenger does not 
take the trip.) In the case of requests for round trips or multi-leg 
trips, the situation is less straightforward. Suppose a passenger asks 
for a round trip from Point A to Point B and back to Point A, or asks 
for a trip from Point A to Point B to Point C, with a return to Point 
A. The first leg of the trip is denied or missed, with the result that 
the passenger never is able to get to Point B. Clearly, at least one 
trip--from Point A to Point B--has been denied or missed. In addition, 
the opportunity to make the subsequent trips in the itinerary has also 
been lost. In this case, the Department suggested in the NPRM, the 
trips from Point B back to Point A, or from Point B to Point C and then 
back to Point A, should also be tallied as denied trips, because the 
action of the paratransit operator in denying or missing the first trip 
cost the passenger the chance to take those trips.

Comments

    Generally, transit authority commenters believed that only the trip 
that was actually denied or missed--in the example, the first trip from 
Point A to Point B--should be counted as a denied or missed trip. Doing 
otherwise, they said, would unfairly exaggerate the performance 
problems of the operator. In addition, these commenters said, there 
might be cases in which operators, while unable to provide 
transportation from Point A to Point B, would be able to provide 
transportation from Point B to Point A later in the day, if the 
passenger had found an alternative way of getting to Point B. Moreover, 
some commenters said, there could be some situations in which it could 
be difficult to determine whether the denial of one trip led to the 
inability to take a subsequent trip, making the counting process 
problematic.
    Disability community commenters, on the other hand, supported 
treating as denials foregone opportunities for subsequent trips 
resulting from denied or missed trips. Under the ADA, these commenters 
believe, eligible passengers are required to receive trips they 
request. If a denial of one trip makes a second requested trip 
impossible, then two opportunities to travel required by the regulation 
have been lost, and should be counted as such. Both trips should be 
counted as denied, lest paratransit operators evade accountability for 
their failure to provide required service.

DOT Response

    The Department believes that when a denied or missed trip makes a 
subsequent requested trip impossible, two opportunities to travel have 
been lost from the point of view of the passenger. In the ontext of a 
statute and regulation intended to protect the opportunities of 
passengers with disabilities to use transportation systems in a 
nondiscriminatory way, that is the point of view that most matters. To 
count denials otherwise would understate the performance deficit of the 
operator. The paratransit

[[Page 57932]]

operator obviously would not need to count as a denial a trip that was 
actually made (e.g., trip from Point A to Point B missed, passenger 
gets to Point B in a taxi, and paratransit operator carries him from 
Point B back to Point A). While there may be situations in which an 
operator would have to exercise judgment concerning whether the denial 
of one trip resulted in a lost opportunity for a subsequent trip, that 
is not sufficient reason, in the Department's view, to permit 
paratransit operators to generally avoid counting as denials lost 
opportunities for travel resulting from their own inability to provide 
previous trips. We also caution paratransit operators against declining 
to take reservations for round trips or ``will call'' trips in order to 
reduce missed or denied trip statistics.
    It is also important for there to be a standardized way of counting 
missed trips and denials that the Department, passengers, and transit 
providers can rely upon. These statistics should be calculated on the 
same basis nationwide, in order to permit better program evaluation and 
comparisons across transit providers. The Department is issuing 
guidance on counting missed/denied trips, and the Federal Transit 
Administration can work further with transit providers on appropriate 
statistical measures.

Disability Law Coordinating Council (DLCC)

NPRM Proposal

    The NPRM proposed codifying the existing coordination mechanism for 
issuing guidance and interpretations of disability laws and regulations 
throughout the Department of Transportation. Known as the DLCC, this 
group consists of representation from the Office of the Secretary, 
Federal Transit Administration, Federal Highway Administration, Federal 
Aviation Administration, Federal Motor Carrier Safety Administration, 
National Highway Traffic Safety Administration, and Federal Railroad 
Administration. Before any guidance or interpretation documents 
developed by the DLCC are issued, they must be approved by the General 
Counsel on behalf of the Department of Transportation as a whole. This 
ensures that the Department speaks with one voice on important 
disability nondiscrimination issues.
    The NPRM's proposal with respect to the DLCC is modeled on 
provisions in the Department's disadvantaged business enterprise (DBE) 
and drug and alcohol testing regulations, where similar mechanisms have 
worked well for many years. Like the Department's ADA and section 504 
rules, these rules are Office of the Secretary regulations applying to 
parties subject to the programs of several DOT operating 
administrations.

Comments

    Almost all comments from the disability community supported 
codifying the DLCC, for the reasons described in the NPRM. Most transit 
industry commenters opposed doing so, citing a variety of reasons. Some 
expressed concern that the DLCC would issue what amounted to 
legislative rules without an opportunity for public comment. Many of 
these commenters wanted the Department to ensure that there would be an 
opportunity for public comment on guidance and interpretations in any 
case. Others wanted guidance and interpretations of the DOT ADA 
concerning transit matters to come from FTA, rather than from the 
Department as a whole. Several commenters believed that a provision of 
SAFETEA-LU that directed FTA to seek notice and comment on guidance 
that had binding effect should apply to DOT guidance.

DOT Response

    Coordination of interpretations and guidance, so that the 
Department of Transportation speaks with a single, reliable voice on 
disability law matters, is essential to the reasoned application of the 
ADA and section 504 of the Rehabilitation Act of 1973. The Department's 
experience in the past has been that, in the absence of such a 
coordination mechanism, various DOT offices and staff members have 
offered differing or inconsistent views on important disability law 
matters. In some cases, one office may not even have been aware of a 
response another office had given concerning the implementation of the 
same provision of a DOT regulation. The lack of a coordinating 
mechanism like the DLCC creates an opportunity for forum shopping, in 
which interested parties can call or write a series of DOT offices or 
staff personnel until they get the answer they want to a question. It 
also increases the likelihood of inconsistent practice among DOT 
recipients.
    The Department does not find the transit industry objections to 
codifying the DLCC to be well-taken. The same transit industry parties 
that objected to the DLCC mechanism have accepted the same mechanism in 
the DBE regulation since 1999 and the drug testing procedure 
regulations since 2000, and neither they nor the Department have 
experienced any significant problems in those contexts. While transit 
industry organizations may disagree with some guidance and 
interpretations that the Department as a whole has produced concerning 
the ADA, that is not a cogent criticism of the internal process that is 
common to all three rules.
    Legislative rules--like parts 37 and 38--have the force and effect 
of Federal law and, with certain exceptions not germane to this 
discussion, are issued through the normal Administrative Procedure Act 
notice and comment process. Consistent with Executive Orders and OMB 
Bulletins, guidance questions and answers do not claim independently to 
have the force and effect of Federal law, but rather set forth the 
Department's interpretations of its own rules and the Department's 
understanding of and recommendations for implementing provisions of 
rules and statutes. The Department's guidance, issued through the DLCC, 
consistently observes this distinction. It should be noted, however, 
that the Department's actions with respect to implementing and 
enforcing the provisions of part 37 and other legislative rules will be 
consistent with the Department's interpretations and understanding of 
those rules, as articulated in DOT guidance.
    The internal organization of how the Department issues guidance, 
and the job of interpreting the meaning of DOT regulations and the 
statutes on which they are based, are inherently governmental 
functions. While the Department regularly discusses the interpretation 
and implementation of its rules with stakeholders, producing guidance 
on these matters is ultimately the Department's responsibility. The 
SAFETEA-LU provision that commenters mentioned (codified at 49 U.S.C. 
5334) applies only to guidance issued by the Federal Transit 
Administration. It does not apply to guidance issued by the Department 
as a whole based on a regulation that is, and always has been, an 
Office of the Secretary rather than a Federal Transit Administration 
rule.
    For all these reasons, the Department is adopting the DLCC 
provision as proposed. We note that a number of commenters asked for 
additional guidance concerning several issues in the regulation, such 
as how concepts like undue burden, direct threat, integrated settings, 
origin to destination, etc. are best understood. To the extent that 
issues like these require additional interpretation or guidance 
following the issuance of this rule, the Department will use the DLCC 
mechanism to craft well-coordinated responses to questions concerning 
issues of this kind.

[[Page 57933]]

Miscellaneous Provisions

    Consistent with guidance issued in September 2005, the Department 
is amending Sec.  37.23, in paragraphs (a), (c), and (d), to add the 
words ``(including, but not limited to, a grant, subgrant, or 
cooperative agreement)'' after the word ``arrangement.'' The purpose of 
this amendment is to clarify that the term ``other arrangement or 
relationship'' refers to any means other than a contract through which 
a public entity works with a private entity to provide fixed route or 
demand responsive service. A private entity that receives a subgrant 
under 49 U.S.C. 5311 has an ``arrangement or relationship'' with the 
state agency involved. If a state provides Sec.  5311 funding to a 
county government via a subgrant agreement, which then provides fixed 
route service, there is no dispute that eligible passengers must have 
ADA complementary paratransit service available. If a state provides 
Sec.  5311 funding to a private entity via a contract, which then 
provides fixed route service, there is no dispute that eligible 
passengers must have ADA complementary paratransit service available. 
Likewise, eligible passengers must have ADA complementary paratransit 
service available if a state provides Sec.  5311 funding to a private 
entity via a subgrant agreement; otherwise, passengers would be denied 
service solely on the basis of the state's administrative choice of a 
provider and a funding mechanism. Making the availability of ADA 
complementary paratransit service wholly contingent on the state's 
choice of administrative arrangements would be both arbitrary and 
inconsistent with the purpose of the ADA.
    The Department is removing and reserving section 37.169 and 
portions of section 37.193. These are obsolete provisions concerning 
over-the-road buses that are no longer needed, given the passage of 
time since the promulgation of subpart H of part 37.
    The Department is adding or altering language in a few places in 49 
CFR part 38 to conform to Access Board language in parallel sections 
(e.g., ``unless structurally or operationally impracticable'') or to 
refer to the new section 37.42.

Accessible Web Sites

NPRM and Comments

    The Department asked about whether the Department should require 
that Web sites operated by transportation providers be made accessible 
to individuals who are blind or visually impaired or otherwise have 
difficulty using Web sites because of a disability. The Department 
received several comments from disability community persons or 
organizations, recommending that the final rule impose such a 
requirement.

DOT Response

    The Department believes strongly that Web sites used by consumers 
of transportation providers should be accessible. Currently, the 
Department is considering this issue in the context of the Air Carrier 
Access Act, and the Department of Justice is reviewing it in the 
context of ongoing work on its ADA regulations. We believe that it is 
best to defer action on this issue until the DOT and DOJ work is 
further advanced, at which point we believe it appropriate to propose 
changes to our ADA rules consistent with the ACAA and DOJ approaches to 
the subject.
    In any case, under existing rules a transportation entity has an 
obligation to provide effective communication to persons with 
disabilities. This obligation exists even if a provider's Web site is 
not yet fully accessible. If a transportation provider makes certain 
information available to the public through its Web site, it must make 
this information available to people who cannot use the Web site. If 
opportunities (e.g., for discount programs) are made available through 
the Web site, then these same opportunities must be afforded to people 
with disabilities who are unable to use the Web site. These are basic 
nondiscrimination obligations under the ADA and section 504.

Bus Rapid Transit

NPRM and Comments

    The NPRM asked whether there should be any specific requirements 
for bus rapid transit (BRT) systems, which share some of the 
characteristics of fixed-route bus systems and some characteristics of 
rail transit systems. Some transit authorities suggested using the bus 
requirements of the rule for BRT vehicles, since the vehicles are 
essentially buses. A few commenters suggested adding provisions 
concerning such subjects as securement. Others suggested that future 
guidance, rather than regulation, would be the best approach to take.

DOT Response

    The Department has decided, for the present, not to propose any 
additional provisions concerning BRT beyond those that apply to buses, 
and will follow the recommendations of commenters to address any BRT-
specific questions with guidance to the extent feasible.

Heritage Fleets

NPRM and Comments

    In a few cities, there are systems that use vintage inaccessible 
vehicles to provide regular public transit service. The NPRM asked 
whether any new regulatory provisions should be applied to increase 
accessibility for such transportation. There were few comments on this 
matter. Some disability organizations recommended good faith efforts be 
used to secure accessible vehicles for such systems or that the 
vehicles be retrofitted for accessibility. Transit industry commenters 
suggested that no changes were needed from existing regulations and 
that there was not a problem that the Department need remedy if 
parallel accessible transit or paratransit were available for origins 
and destinations served by the heritage fleet lines.

DOT Response

    On this matter, the Department believes that no change is necessary 
from the existing regulation. Sections 37.73 and 37.75 appear to 
adequately address such situations. Section 37.73 requires good faith 
efforts be employed to find accessible used vehicles prior to 
purchasing inaccessible vehicles, and 37.75 requires remanufactured 
vehicles to be made accessible unless an engineering analysis 
demonstrates that including accessibility features would have a 
significant adverse effect on the structural integrity of the vehicle. 
Transit providers are reminded that complementary paratransit service 
must be provided when the fixed route system is inaccessible.

Used Demand-Response Vehicles

NPRM

    The ADA and the Department's rule require that when a public 
transit provider acquires used vehicles for a fixed route system, the 
provider must make and document good faith efforts (GFE) to obtain an 
accessible used vehicle. This requirement does not apply, however, to 
vehicles acquired for demand-responsive systems for the general public. 
The NPRM asked whether the GFE requirement should be expanded to cover 
these systems.

Comments

    Most of the comments on these issues were from the disability 
community, and they unanimously recommended that GFE be required. The 
rationale for doing so, they said, is the same as in the case of fixed 
route vehicles: simply acquiring inaccessible used vehicles perpetuates 
transportation that is not fully accessible to and usable by

[[Page 57934]]

passengers with disabilities. The few transit industry comments that 
addressed this subject objected to performing GFE in these cases, 
saying that doing so was unnecessary and could inhibit demand-
responsive systems for the general public from using sedans or taxi 
services as part of their operation.

DOT Response

    It is likely that today there may be a significant number of used 
accessible vans and small buses available that demand responsive 
systems for the general public could use. We believe that it is a best 
practice for such systems to make good faith efforts to acquire 
accessible vehicles when seeking used vehicles. However, the statute 
imposes a good faith effort requirement for acquiring used vehicles 
only on fixed-route systems, not demand-responsive systems for the 
general public. Consequently, the Department will not include a 
regulatory text provision mandating good faith efforts for used 
vehicles operated in demand-responsive systems for the general public.

Expansion of Key Station Requirements

NPRM and Comments

    The NPRM asked whether requirements to retrofit stations for 
accessibility should be extended to include stations not originally 
designated as key stations (e.g., stations that, because of changes in 
land use, had become higher passenger volume stations than they were in 
1991). Disability community commenters and one transportation provider 
stated that all existing stations should be made accessible or, at 
least, that if an existing station began to meet key station criteria 
(e.g., because of changes in usage patterns or in the configuration of 
a rail system), that station should be added to the list of key 
stations and modified to make it accessible. Most transportation 
providers either said that a requirement to this effect was unnecessary 
or that retrofitting additional stations for accessibility was a 
decision that should be made locally.

DOT Response

    In the Department's view, the ADA does not provide a statutory 
basis for requiring the expansion of the list of key stations, 
renovation of which for accessibility was to have been completed within 
a stated amount of time after the statute became effective. By 
incorporating the key station concept, the ADA clearly did not take the 
view that all existing stations in pre-ADA systems had to be 
retrofitted. The Department agrees with transit industry commenters who 
said that local decisions to react to changes in a system, plus the 
requirement to make alterations to stations in an accessible way, 
should be sufficient.

Reasonable Modification of Policies

    The NPRM proposed adding language to the rule, parallel to that in 
Department of Justice ADA rules, the Department's Air Carrier Access 
Act and, more recently, ADA passenger vessel rules, requiring regulated 
entities to make reasonable modifications to policies in order to 
ensure appropriate and nondiscriminatory service to persons with 
disabilities. This proposal attracted extensive comment. Generally, 
disability community commenters favored the proposal while 
transportation industry commenters opposed it.
    The Department is continuing to work toward a final rule addressing 
this subject, including working on a regulatory evaluation concerning 
the costs and benefits of such a requirement. Because the work on a 
regulatory evaluation concerning rail service accessibility has 
occurred before work has been completed on the regulatory evaluation of 
the reasonable modification proposal, the Department is not issuing a 
final rule concerning reasonable modification at this time.
    The Department notes that its September 2005 guidance concerning 
origin-to-destination service remains the Department's interpretation 
of the obligations of ADA complementary paratransit providers under 
existing regulations. As with other interpretations of regulatory 
provisions, the Department will rely on this interpretation in 
implementing and enforcing the origin-to-destination requirement of 
part 37. This application of the origin-to-destination service 
requirement of the existing rule is not dependent on the ultimate 
disposition of the NPRM's reasonable modification proposal.

Regulatory Analyses and Notices

Executive Order 12866

    This final rule is significant for purposes of Executive Order 
12866 and the Department of Transportation's Regulatory Policies and 
Procedures. The NPRM clarifies the Department's existing requirements 
concerning new commuter and intercity rail platforms. The Department 
has conducted a regulatory evaluation of the costs of the requirements 
of the final rule version of section 37.42. The overall conclusion of 
the evaluation is that there will be no significant cost impacts as the 
result of provisions of the final rule for commuter rail operators and 
modest costs at a relatively small number of stations for Amtrak. The 
regulatory evaluation has been placed in the docket.
    Other provisions of the final rule do not represent significant 
departures from existing regulations and policy and are not expected to 
have noteworthy cost impacts on regulated parties. The final rule also 
codifies existing internal administrative practices concerning 
disability law guidance. This proposal would have no cost impacts on 
regulated parties.

Federalism

    A rule has implications for federalism under Executive Order 13132, 
Federalism, if it has a substantial direct effect on State or local 
governments and would either preempt State law or impose a substantial 
direct cost of compliance on them. We have analyzed this rule under the 
Order and have determined that it does not have implications for 
federalism sufficient to warrant the preparation of a Federalism 
Assessment, since it does not change the relationship between the 
Department and State or local governments, pre-empt State law, or 
impose substantial direct compliance costs on those governments.

Regulatory Flexibility Act (5 U.S.C. 601-612)

    The Department certifies that this rule will not have a significant 
economic effect on a substantial number of small entities. The rail 
operators affected by the boarding nondiscrimination portion of the 
rule are Amtrak and commuter authorities. Amtrak is a large entity. 
Commuter rail operators are large entities. Moreover, as the text of 
the rule and preamble make clear, there are no retrofit requirements 
that would increase costs for covered entities, regardless of size, as 
requirements apply only with respect to new and altered facilities. As 
the regulatory evaluation shows, costs for Amtrak will be modest and 
costs for commuter operators will be relatively low. None of the other 
provisions of the rule have any significant effect on entities' costs 
or operations. The wheelchair equipment provision applies only to how 
transportation providers, regardless of size, use the equipment they 
have. Again, no retrofit is required. The changes to part 38 are only 
in terminology. These facts support the Department's conclusion that 
there will not be significant economic effects from

[[Page 57935]]

the rule, and that a substantial number of small entities are not 
affected.

Unfunded Mandates Reform Act

    Since the ADA and section 504 are nondiscrimination/civil rights 
statutes, the Unfunded Mandates Reform Act does not apply. In any case, 
since Amtrak and commuter rail authorities receive Federal funds for 
the operations to which this rule applies, the rule's requirements are 
properly considered as funded mandates.

Paperwork Reduction Act

    Under this rule, railroads that choose to use a means of meeting 
the performance standard other than level-entry boarding would have to 
submit a proposed plan to FRA or FTA demonstrating that their chosen 
method would actually achieve the rule's objectives (see section 
37.42(d)(2)). They would also have to make a comparison between using 
car-borne lifts and other means of meeting the regulatory performance 
standard (see section 37.42(d)(1)). These requirements constitute 
information collection requirements covered by the Paperwork Reduction 
Act of 1995 (PRA) and OMB rules implementing it. The Department will 
issue a separate 60-day notice seeking comment on these information 
collection requirements.

List of Subjects

49 CFR Part 37

    Buildings, Buses, Civil Rights, Handicapped, Individuals with 
Disabilities, Mass Transportation, Railroads, Reporting and 
recordkeeping requirements, Transportation.

49 CFR Part 38

    Buses, Civil Rights, Handicapped, Individuals with Disabilities, 
Mass Transportation, Railroads, Reporting and recordkeeping 
requirements, Transportation.

    Issued this 29th Day of August, 2011 at Washington, DC.
Ray LaHood,
Secretary of Transportation.

    For the reasons set forth in the preamble, the Department of 
Transportation amends 49 CFR parts 37 and 38 as follows:

0
1. The authority citation for part 37 continues to read as follows:

    Authority:  42 U.S.C. 12101-12213; 49 U.S.C. 322.

0
2. In Sec.  37.3, add the definition ``Direct threat'' and revise the 
definition ``Wheelchair'' to read as follows:

Sec.  37.3  Definitions.

* * * * *
    Direct threat means a significant risk to the health or safety of 
others that cannot be eliminated by a modification of policies, 
practices, procedures, or by the provision of auxiliary aids or 
services.
* * * * *
    Wheelchair means a mobility aid belonging to any class of three- or 
more-wheeled devices, usable indoors, designed or modified for and used 
by individuals with mobility impairments, whether operated manually or 
powered.

0
3. Revise Sec.  37.15 to read as follows:

Sec.  37.15  Interpretations and guidance.

    The Secretary of Transportation, Office of the Secretary of 
Transportation, and Operating Administrations may issue written 
interpretations of or written guidance concerning this part. Written 
interpretations and guidance shall be developed through the 
Department's coordinating mechanism for disability matters, the 
Disability Law Coordinating Council. Written interpretations and 
guidance constitute the official position of the Department of 
Transportation, or any of its operating administrations, only if they 
are issued over the signature of the Secretary of Transportation or if 
they contain the following statement: ``The General Counsel of the 
Department of Transportation has reviewed this document and approved it 
as consistent with the language and intent of 49 CFR parts 27, 37, 38, 
and/or 39, as applicable.''

0
4. In Sec.  37.23, in paragraphs (a), (c), and (d), add the words 
``(including, but not limited to, a grant, subgrant, or cooperative 
agreement)'' after the word ``arrangement.''

0
5. Add a new Sec.  37.42, to read as follows:

Sec.  37.42  Service in an Integrated Setting to Passengers at 
Intercity, Commuter, and High-Speed Rail Station Platforms Constructed 
or Altered After February 1, 2012.

    (a) In addition to meeting the requirements of sections 37.9 and 
37.41, an operator of a commuter, intercity, or high-speed rail system 
must ensure, at stations that are approved for entry into final design 
or that begin construction or alteration of platforms on or after 
February 1, 2012, that the following performance standard is met: 
individuals with disabilities, including individuals who use 
wheelchairs, must have access to all accessible cars available to 
passengers without disabilities in each train using the station.
    (b) For new or altered stations serving commuter, intercity, or 
high-speed rail lines or systems, in which no track passing through the 
station and adjacent to platforms is shared with existing freight rail 
operations, the performance standard of paragraph (a) of this section 
must be met by providing level-entry boarding to all accessible cars in 
each train that serves the station.
    (c) For new or altered stations serving commuter, intercity, or 
high-speed rail lines or systems, in which track passing through the 
station and adjacent to platforms is shared with existing freight rail 
operations, the railroad operator may comply with the performance 
standard of paragraph (a) by use of one or more of the following means:
    (1) Level-entry boarding;
    (2) Car-borne lifts;
    (3) Bridge plates, ramps or other appropriate devices;
    (4) Mini-high platforms, with multiple mini-high platforms or 
multiple train stops, as needed, to permit access to all accessible 
cars available at that station; or
    (5) Station-based lifts;
    (d) Before constructing or altering a platform at a station covered 
by paragraph (c) of this section, at which a railroad proposes to use a 
means other than level-entry boarding, the railroad must meet the 
following requirements:
    (1) If the railroad operator not using level-entry boarding chooses 
a means of meeting the performance standard other than using car-borne 
lifts, it must perform a comparison of the costs (capital, operating, 
and life-cycle costs) of car-borne lifts and the means chosen by the 
railroad operator, as well as a comparison of the relative ability of 
each of these alternatives to provide service to individuals with 
disabilities in an integrated, safe, timely, and reliable manner. The 
railroad operator must submit a copy of this analysis to FTA or FRA at 
the time it submits the plan required by paragraph (d)(2) of this 
section.
    (2) The railroad operator must submit a plan to FRA and/or FTA, 
describing its proposed means to meet the performance standard of 
paragraph (a) of this section at that station. The plan must 
demonstrate how boarding equipment or platforms would be deployed, 
maintained, and operated; and how personnel would be trained and 
deployed to ensure that service to individuals with disabilities is 
provided in an integrated, safe, timely, and reliable manner.
    (3) Before proceeding with constructing or modifying a station 
platform covered by paragraphs (c) and (d) of this section, the 
railroad must

[[Page 57936]]

obtain approval from the FTA (for commuter rail systems) or the FRA 
(for intercity rail systems). The agencies will evaluate the proposed 
plan and may approve, disapprove, or modify it. The FTA and the FRA may 
make this determination jointly in any situation in which both a 
commuter rail system and an intercity or high-speed rail system use the 
tracks serving the platform. FTA and FRA will respond to the railroad's 
plan in a timely manner, in accordance with the timetable set forth in 
paragraphs (d)(3)(i) through (d)(3)(iii) of this paragraph.
    (i) FTA/FRA will provide an initial written response within 30 days 
of receiving a railroad's written proposal. This response will say 
either that the submission is complete or that additional information 
is needed.
    (ii) Once a complete package, including any requested additional 
information, is received, as acknowledged by FRA/FTA in writing, FRA/
FTA will provide a substantive response accepting, rejecting, or 
modifying the proposal within 120 days.
    (iii) If FTA/FRA needs additional time to consider the railroad's 
proposal, FRA/FTA will provide a written communication to the railroad 
setting forth the reasons for the delay and an estimate of the 
additional time (not to exceed an additional 60 days) that FRA/FTA 
expect to take to finalize a substantive response to the proposal.
    (iv) In reviewing the plan, FRA and FTA will consider factors 
including, but not limited to, how the proposal maximizes accessibility 
to individuals with disabilities, any obstacles to the use of a method 
that could provide better service to individuals with disabilities, the 
safety and reliability of the approach and related technology proposed 
to be used, the suitability of the means proposed to the station and 
line and/or system on which it would be used, and the adequacy of 
equipment and maintenance and staff training and deployment.
    (e) In any situation using a combination of high and low platforms, 
a commuter or intercity rail operator shall not employ a solution that 
has the effect of channeling passengers into a narrow space between the 
face of the higher-level platform and the edge of the lower platform.
    (1) Except as provided in paragraph (e)(2) of this paragraph, any 
obstructions on a platform (mini-high platforms, stairwells, elevator 
shafts, seats etc.) shall be set at least six feet back from the edge 
of a platform.
    (2) If the six-foot clearance is not feasible (e.g., where such a 
clearance would create an insurmountable gap on a mini-high platform or 
where the physical structure of an existing station does not allow such 
clearance), barriers must be used to prevent the flow of pedestrian 
traffic through these narrower areas.
    (f) For purposes of this part, level-entry boarding means a 
boarding platform design in which the horizontal gap between a car at 
rest and the platform is no more than 10 inches on tangent track and 13 
inches on curves and the vertical height of the car floor is no more 
than 5.5 inches above the boarding platform. Where the horizontal gap 
is more than 3 inches and/or the vertical gap is more than \5/8\ inch, 
measured when the vehicle is at rest, the horizontal and vertical gaps 
between the car floor and the boarding platform must be mitigated by a 
bridge plate, ramp, or other appropriate device consistent with 49 CFR 
38.95(c) and 38.125(c).

Sec.  37.71  [Amended]

0
6. In Sec.  37.71, remove the words ``Except as provided elsewhere in 
this section'' from paragraph (a) and remove paragraphs (b) through 
(g).

Sec.  37.103  [Amended]

0
7. In Sec.  37.103 (b) and (c), remove the words ``or an over-the-road 
bus,''.

0
8. Revise Sec.  37.165(b) to read as follows:

Sec.  37.165  Lift and securement use.

* * * * *
    (b) Except as provided in this section, individuals using 
wheelchairs shall be transported in the entity's vehicles or other 
conveyances.
    (1) With respect to wheelchair/occupant combinations that are 
larger or heavier than those to which the design standards for vehicles 
and equipment of 49 CFR part 38 refer, the entity must carry the 
wheelchair and occupant if the lift and vehicle can accommodate the 
wheelchair and occupant. The entity may decline to carry a wheelchair/
occupant if the combined weight exceeds that of the lift specifications 
or if carriage of the wheelchair is demonstrated to be inconsistent 
with legitimate safety requirements.
    (2) The entity is not required to permit wheelchairs to ride in 
places other than designated securement locations in the vehicle, where 
such locations exist.
* * * * *

Sec.  37.169  [Removed and reserved]

0
9. Remove and reserve Sec.  37.169.

0
10. In Sec.  37.193, remove paragraph (a)(2), remove and reserve 
paragraph (c), and redesignate paragraph (a)(3) as (a)(2).

0
11. Appendix D to Part 37 is amended by:
0
A. Under Section 37.3 Definitions, remove the last two paragraphs and 
add four paragraphs in its place,
0
B. Add Section 37.42 in numerical order,
0
C. Revise the first paragraph under Section 37.71,
0
D. Under Section 37.93 remove the period at the end of last sentence in 
the third paragraph and replace with it comma, and add the following 
language: ``except where doing is necessary to comply with the 
provisions of section 37.42 of this part.''
0
E. Revise Section 37.165.
    The revisions and additions read as follows:

Appendix D to Part 37--Construction and Interpretation of Provisions of 
49 CFR Part 37

* * * * *

Section 37.3 Definitions

* * * * *
    The definition of ``wheelchair'' includes a wide variety of 
mobility devices. This inclusiveness is consistent with the 
legislative history of the ADA (See S. Rept. 101-116 at 48). While 
some mobility devices may not look like many persons' traditional 
idea of a wheelchair, three- and more-wheeled devices, of many 
varied designs, are used by individuals with disabilities and must 
be transported. ``Wheelchair'' is defined in this rule as a mobility 
aid belonging to any class of three-or more-wheeled devices, usable 
indoors, designed or modified for and used by individuals with 
mobility impairments, whether operated manually or powered. The 
``three- or-more-wheeled'' language in the definition is intended to 
encompass wheelchairs that may have additional wheels (e.g., two 
extra guide wheels in addition to the more traditional four wheels).
    Persons with mobility disabilities may use devices other than 
wheelchairs to assist with locomotion. Canes, crutches, and walkers, 
for example, are often used by people whose mobility disabilities do 
not require use of a wheelchair. These devices must be accommodated 
on the same basis as wheelchairs. However, the Department does not 
interpret its rules to require transportation providers to 
accommodate devices that are not primarily designed or intended to 
assist persons with mobility disabilities (e.g., skateboards, 
bicycles, shopping carts), apart from general policies applicable to 
all passengers who might seek to bring such devices into a vehicle. 
Similarly, the Department does not interpret its rules to require 
transportation providers to permit an assistive device to be used in 
a way that departs from or exceeds the intended purpose of the 
device (e.g., to use a walker, even one with a seat intended to 
allow temporary rest intervals, as a wheelchair in

[[Page 57937]]

which a passenger sits for the duration of a ride on a transit 
vehicle).
    The definition of wheelchair is not intended to include a class 
of devices known as ``other power-driven mobility devices'' (OPMDs). 
OPMDs are defined in Department of Justice ADA rules as ``any 
mobility device powered by batteries, fuel, or other engines--
whether or not designed primarily for use by individuals with 
mobility disabilities--that is used by individuals with mobility 
disabilities for the purpose of locomotion, including golf carts * * 
* Segway[s][supreg], or any mobility device designed to operate in 
areas without defined pedestrian routes, but that is not a 
wheelchair * * * .'' DOT is placing guidance on its Web site 
concerning the use of Segways in transportation vehicles and 
facilities.
    The definition of ``direct threat'' is intended to be 
interpreted consistently with the parallel definition in Department 
of Justice regulations. That is, part 37 does not require a public 
entity to permit an individual to participate in or benefit from the 
services, programs, or activities of that public entity when that 
individual poses a direct threat to the health or safety of others. 
In determining whether an individual poses a direct threat to the 
health or safety of others, a public entity must make an 
individualized assessment, based on reasonable judgment that relies 
on current medical knowledge or on the best available objective 
evidence, to ascertain: the nature, duration, and severity of the 
risk; the probability that the potential injury will actually occur; 
and whether reasonable modifications of policies, practices, or 
procedures or the provision of auxiliary aids or services will 
mitigate the risk.
* * * * *

Section 37.42

    Service in an integrated setting to passengers at intercity, 
commuter, and high-speed rail station platforms constructed or 
altered after February 1, 2012.
    Individuals with disabilities, including individuals who use 
wheelchairs, must have access to all accessible cars in each train 
using a new or altered station. This performance standard will apply 
at stations where construction or alteration of platforms begins 135 
days or more after the rule is published. The performance standard 
does not require rail operators to retrofit existing station 
platforms or cars. The requirement is prospective, and section 37.42 
does not require retrofit of existing stations (though compliance 
with existing disability nondiscrimination requirements not being 
altered is still required). To meet this performance standard on 
lines or systems where track passing through stations and adjacent 
to platforms is shared with existing freight rail operations, 
passenger railroads that do not choose to provide level-entry 
boarding may, after obtaining FRA and/or FTA approval, use car-borne 
lifts, ramps or other devices, mini-high platforms (making multiple 
stops where necessary to accommodate passengers wishing to use 
different cars of the train), or movable station-based lifts.
    On commuter, intercity, or high-speed rail lines or systems in 
which track passing through stations and adjacent to platforms is 
not shared with existing freight rail operations, the performance 
standard must be met by providing level-entry boarding to all 
accessible cars in each train that serves new or altered stations on 
the line or system. For example, if a new commuter or high-speed 
rail line or system is being built, and the track adjacent to 
platforms is not shared with freight traffic (e.g., it is a 
passenger rail-only system, or a passing or gauntlet track exists 
for freight traffic), then the stations would have to provide level-
entry boarding. Other options would not be permitted.
    If a platform being constructed or altered is not adjacent to 
track used for freight, but the track and platform are used by more 
than one passenger railroad (e.g., Amtrak and a commuter railroad), 
the possibility of the platform serving cars with different door 
heights exists. In this situation, the level-entry boarding 
requirement continues to exist. Generally, the platform should be 
level with respect to the system that has the lower boarding height. 
This is because it is not good safety practice to make passengers 
step down (or be lifted down or use ramps to get down) to board a 
train. For example, if Amtrak operates through a station with cars 
that are 15 inches ATR, and a commuter railroad uses the same 
platform with cars that are 25 inches ATR, the platform would be 
level with respect to the Amtrak cars. The commuter railroad would 
have to provide another means of access, such as lifts. In all such 
cases where mixed rail equipment will be used, the rule requires 
that both FRA and FTA be consulted by the railroads involved. As in 
other cases where level-entry boarding is not used, the railroad 
must obtain FTA and/or FRA approval for the means the railroad wants 
to use to meet the performance standard.
    The details of the ``track passing through stations and adjacent 
to platforms is shared with existing freight rail operations'' 
language are important. There may be stations that serve lines that 
are shared, at some points, by passenger and freight traffic, but 
where the freight traffic does not go through the particular station 
(e.g., because freight traffic bypasses the station), level-entry 
boarding is required. There could also be situations on which 
multiple tracks pass through a station, and freight traffic uses 
only a center track, not a track which is adjacent to a platform. In 
such cases, the new or altered platform would have to provide level-
entry boarding. It is important to note that this language refers to 
``existing'' freight rail traffic, as opposed to the possibility 
that freight traffic might use the track in question at some future 
time. Likewise, if freight trains have not used a track passing 
through a station in a significant period of time (e.g., the past 10 
years), the Department does not view this as constituting ``existing 
freight rail traffic.''
    Passenger rail operators must provide access only to accessible, 
available cars that people with disabilities are trying to access at 
a given station. If a train has eight accessible cars, and 
wheelchair users want to enter only cars 2 and 7 (see discussion 
below of passenger notification), then railroad personnel need to 
deploy lifts or bridge plates only at cars 2 and 7, not at the other 
cars. Similarly, the rule requires operators to provide access only 
to available cars at a station. If a train has eight accessible 
cars, but the platform only serves cars 1 through 6, then railroad 
personnel need to deploy lifts or bridge plates only at cars that 
people with disabilities are trying to access and that are available 
to all passengers. We would also point out that wheelchair positions 
on rail passenger cars are intended to serve wheelchair users, and 
railroad operators should take steps to ensure that these spaces are 
available for wheelchair users and not for other uses. For example, 
it would be contrary to the rule for a wheelchair user to be told 
that he or she could not use car 7 because the wheelchair spaces 
were filled with other passengers' luggage from a previous stop.
    In order to ensure that access was provided, passengers would 
have to notify railroad personnel. For example, if a passenger at a 
station wanted to use a station-based lift to access car 6, the 
passenger would request the use of car 6 and railroad personnel 
would deploy the lift at that car. Likewise, at a station using a 
mini-high platform, a passenger on this platform would inform train 
personnel that he or she wanted to enter car 5, whereupon the train 
would pull forward so that car 5 was opposite the mini-high 
platform. We contemplate that these requests would be made when the 
train arrives, and railroads could not insist on advance notice 
(e.g., the railroad could not require a passenger to call a certain 
time in advance to make a ``reservation'' to use a lift to get on a 
particular car). As part of its submission to FTA or FRA, the 
railroad would describe the procedure it would use to receive and 
fulfill these requests.
    Where a railroad operator wishes to provide access to its rail 
cars through a means other than level-entry boarding, it is 
essential that it provide an integrated, safe, timely, reliable, and 
effective means of access for people with disabilities. A railroad 
is not required to choose what might be regarded as a more desirable 
or convenient method over a less desirable or convenient method, or 
to choose a more costly option over a less costly option. What a 
railroad must do is to ensure that whatever option it chooses works. 
However, to assist railroads in choosing the most suitable option, 
the rule requires that a railroad not using level-entry boarding, if 
it chooses an approach other than the use of car-borne lifts, must 
perform a comparison of the costs (capital, operating, and life-
cycle costs) of car-borne lifts versus the means preferred by the 
railroad operator, as well as a comparison of the relative ability 
of each of the two alternatives (i.e., car-borne lifts and the 
railroad's preferred approach) to provide service to people with 
disabilities in an integrated, safe, reliable, and timely manner. 
The railroad must submit this comparison to FTA and FRA at the same 
time as it submits its plan to FRA and/or FTA, as described below, 
although the comparison is not part of the basis on which the 
agencies would determine whether the plan meets the performance 
standard. The Department believes that, in creating this plan, 
railroads should consult with interested individuals and groups and 
should make the plan readily

[[Page 57938]]

available to the public, including individuals with disabilities.
    To ensure that the railroad's chosen option works, the railroad 
must provide to FRA or FTA (or both), as applicable, a plan 
explaining how its preferred method will provide the required 
integrated, safe, reliable, timely and effective means of access for 
people with disabilities. The plan would have to explain how 
boarding equipment (e.g., bridge plates, lifts, ramps, or other 
appropriate devices) and/or platforms will be deployed, maintained, 
and operated, as well as how personnel will be trained and deployed 
to ensure that service to individuals with disabilities was provided 
in an integrated, safe, timely, effective, and reliable manner.
    FTA and/or FRA will evaluate the proposed plan with respect to 
whether it will achieve the objectives of the performance standard 
and may approve, disapprove, or modify it. It should be emphasized 
that the purpose of FTA/FRA review of this plan is to make sure that 
whatever approach a railroad chooses will in fact work; that is, it 
will really result in an integrated, safe, reliable, timely and 
effective means of access for people with disabilities. If a plan, 
in the view of FRA or FTA, fails to meet this test, then FTA or FRA 
can reject it or require the railroad to modify it to meet the 
objectives of this provision.
    In considering railroads' plans, the agencies will consider 
factors including, but not limited to, how the proposal maximizes 
integration of and accessibility to individuals with disabilities, 
any obstacles to the use of a method that could provide better 
service to individuals with disabilities, the safety and reliability 
of the approach and related technology proposed to be used, the 
suitability of the means proposed to the station and line and/or 
system on which it would be used, and the adequacy of equipment and 
maintenance and staff training and deployment.
    For example, some commenters have expressed significant concerns 
about the use of station-based lifts, noting instances in which such 
lifts have not been maintained in a safe and reliable working order. 
A railroad proposing to use station-based lifts would have to 
describe to FTA or FRA how it would ensure that the lifts remained 
in safe and reliable operating condition (such as by cycling the 
lift daily or other regular maintenance) and how it would ensure 
that personnel to operate the lift were available in a timely manner 
to assist passengers in boarding a train. This demonstration must 
clearly state how the railroad expects that their operations will 
provide safe and dignified service to the users of such lifts.
    In existing stations where it is possible to provide access to 
every car without station or rail car retrofits, rail providers that 
receive DOT financial assistance should be mindful of the 
requirement of 49 CFR 27.7(b)(2), which requires that service be 
provided ``in the most integrated setting that is reasonably 
achievable.'' For example, if a set of rail cars has car-borne lifts 
that enable the railroad to comply with section 37.42 at new or 
altered station platforms, it is likely that deployment of this lift 
at existing stations will be reasonably achievable. Similarly, it is 
likely that, in a system using mini-high platforms, making multiple 
stops at existing stations would be reasonable achievable. The use 
of a station-based lift at an existing station to serve more than 
one car of a train may well also be reasonably achievable (e.g., 
with movement of the lift or multiple stops, as needed). Such 
actions would serve the objective of providing service in an 
integrated setting. In addition, in situations where a railroad and 
the Department have negotiated access to every accessible car in an 
existing system (e.g., with car-borne lifts and mini-high platforms 
as a back-up), the Department expects the railroads to continue to 
provide access to every accessible car for people with disabilities.
    Section 37.42(e) provides a safety requirement concerning the 
setback of structures and obstacles (e.g., mini-high platforms, 
elevators, escalators, and stairwells) from the platform edge. This 
provision is based on long-standing FRA recommendations and the 
expertise of the Department's staff. The Department believes that it 
is inadvisable, with the exception of boarding and alighting a 
train, to ever have a wheelchair operate over the two-foot wide 
tactile strips that are parallel to the edge of the platform. This 
leaves a four-foot distance for a person in a typical wheelchair to 
maneuver safely past stair wells, elevator shafts, etc. It also is 
important because a wheelchair user exiting a train at a door where 
there is not a six-foot clearance would likely have difficulty 
exiting and making the turn out of the rail car door. The 
requirement would also avoid channeling pedestrians through a 
relatively narrow space where, in crowded platform conditions, there 
would be an increased chance of someone falling off the edge of the 
platform. Since the rule concerns only new and altered platforms, 
the Department does not believe the cost or difficulty of designing 
the platforms to eliminate this hazard will be significant.
    Section 37.42(f) provides the maximum gap allowable for a 
platform to be considered ``level.'' However, this maximum is not 
intended to be the norm for new or altered platforms. The Department 
expects transportation providers to minimize platform gaps to the 
greatest extent possible by building stations on tangent track and 
using gap-filling technologies, such as moveable platform edges, 
threshold plates, platform end boards, and flexible rubber fingers 
on the ends of platforms. The Department encourages the use of Gap 
Management Plans and consultation with FRA and/or FTA for guidance 
on gap safety issues.
    Even where level-entry boarding is provided, it is likely that, 
in many instances, bridge plates would have to be used to enable 
passengers with disabilities to enter cars, because of the 
horizontal gaps involved. Section 38.95(c)(5), referred to in the 
regulatory text, permits various ramp slopes for bridge plates, 
depending on the vertical gap in given situation. In order to 
maximize the opportunity of passengers to board independently, the 
Department urges railroads to use the least steep ramp slope 
feasible at a given platform.\
* * * * *

Section 37.71 Acquisition of Accessible Vehicles by Public Entities

    This section generally sets out the basic acquisition 
requirements for a public entity purchasing a new vehicle. The 
section requires any public entity that purchases or leases a new 
vehicle to acquire an accessible vehicle.
* * * * *

Section 37.165 Lift and Securement Use

    This provision applies to both public and private entities.
    All people using wheelchairs, as defined in the rule, and other 
powered mobility devices, under the circumstances provided in the 
rule, are to be allowed to ride the entity's vehicles.
    Entities may require wheelchair users to ride in designated 
securement locations. That is, the entity is not required to carry 
wheelchair users whose wheelchairs would have to park in an aisle or 
other location where they could obstruct other persons' passage or 
where they could not be secured or restrained. An entity's vehicle 
is not required to pick up a wheelchair user when the securement 
locations are full, just as the vehicle may pass by other passengers 
waiting at the stop if the bus is full.
    The entity may require that wheelchair users make use of 
securement systems for their mobility devices. The entity, in other 
words, can require wheelchair users to ``buckle up'' their mobility 
devices. The entity is required, on a vehicle meeting part 38 
standards, to use the securement system to secure wheelchairs as 
provided in that part. On other vehicles (e.g., existing vehicles 
with securement systems which do not comply with part 38 standards), 
the entity must provide and use a securement system to ensure that 
the mobility device remains within the securement area. This latter 
requirement is a mandate to use best efforts to restrain or confine 
the wheelchair to the securement area. The entity does the best it 
can, given its securement technology and the nature of the 
wheelchair. The Department encourages entities with relatively less 
adequate securement systems on their vehicles, where feasible, to 
retrofit the vehicles with better securement systems, that can 
successfully restrain a wide variety of wheelchairs. It is our 
understanding that the cost of doing so is not enormous.
    An entity may not, in any case, deny transportation to a 
wheelchair and its user because the wheelchair cannot be secured or 
restrained by a vehicle's securement system, to the entity's 
satisfaction. The same point applies to an OPMD and its user, 
subject to legitimate safety requirements.
    Entities have often recommended or required that a wheelchair 
user transfer out of his or her own device into a vehicle seat. 
Under this rule, it is no longer permissible to require such a 
transfer. The entity may provide information on risks and make a 
recommendation with respect to transfer, but the final decision on 
whether to transfer is up to the passenger.
    The entity's personnel have an obligation to ensure that a 
passenger with a disability is able to take advantage of the 
accessibility and safety features on vehicles.

[[Page 57939]]

Consequently, the driver or other personnel must provide assistance 
with the use of lifts, ramps, and securement devices. For example, 
the driver must deploy the lift properly and safely. If the 
passenger cannot do so independently, the driver must assist the 
passenger with using the securement device. On a vehicle which uses 
a ramp for entry, the driver may have to assist in pushing a manual 
wheelchair up the ramp (particularly where the ramp slope is 
relatively steep). All these actions may involve a driver leaving 
his seat. Even in entities whose drivers traditionally do not leave 
their seats (e.g., because of labor-management agreements or company 
rules), this assistance must be provided. This rule overrides any 
requirements to the contrary.
    Wheelchair users, especially those using electric wheelchairs, 
often have a preference for entering a lift platform and vehicle in 
a particular direction (e.g., backing on or going on frontwards). 
Except where the only way of successfully maneuvering a device onto 
a vehicle or into its securement area or an overriding safety 
concern (i.e., a direct threat) requires one way of doing this or 
another, the transit provider should respect the passenger's 
preference. We note that most electric wheelchairs are usually not 
equipped with rearview mirrors, and that many persons who use them 
are not able to rotate their heads sufficiently to see behind. 
People using canes or walkers and other standees with disabilities 
who do not use wheelchairs but have difficulty using steps (e.g., an 
elderly person who can walk on a level surface without use of a 
mobility aid but cannot raise his or her legs sufficiently to climb 
bus steps) must also be permitted to use the lift, on request.
    A lift conforming to Access Board requirements has a platform 
measuring at least 30'' x 48'', with a design load of at least 600 
pounds (i.e., capable of lifting a wheelchair/occupant combination 
of up to 600 pounds). Working parts upon which the lift depends for 
support of the load, such as cables, pulleys, and shafts, must have 
a safety factor of at least six times the design load; nonworking 
parts such as the platform, frame, and attachment hardware, which 
would not be expected to wear, must have a safety factor of at least 
three times the design load.
    If a transportation provider has a vehicle and equipment that 
meets or exceeds standards based on Access Board guidelines, and the 
vehicle and equipment can in fact safely accommodate a given 
wheelchair, then it is not appropriate, under disability 
nondiscrimination law, for the transportation provider to refuse to 
transport the device and its user. Transportation providers must 
carry a wheelchair and its user, as long as the lift can accommodate 
the size and weight of the wheelchair and its user and there is 
space for the wheelchair on the vehicle. However, if in fact a lift 
or vehicle is unable to accommodate the wheelchair and its user, the 
transportation provider is not required to carry it.
    For example, suppose that a bus or paratransit vehicle lift will 
safely accommodate an 800-pound wheelchair/passenger combination, 
but not a combination exceeding 800 pounds (i.e., a design load of 
800 lbs.). The lift is one that exceeds the part 38 design standard, 
which requires lifts to be able to accommodate a 600-pound 
wheelchair/passenger combination. The transportation provider could 
limit use of that lift to a combination of 800 pounds or less. 
Likewise, if a wheelchair or its attachments extends beyond the 30 x 
48 inch footprint found in part 38's design standards but fits onto 
the lift and into the wheelchair securement area of the vehicle, the 
transportation provider would have to accommodate the wheelchair. 
However, if such a wheelchair was of a size that would block an 
aisle and interfere with the safe evacuation of passengers in an 
emergency, the operator could deny carriage of that wheelchair based 
on a legitimate safety requirement.

PART 38--AMERICANS WITH DISABILITIES ACT (ADA) ACCESSIBILITY 
SPECIFICATIONS FOR TRANSPORTATION VEHICLES

0
12. The authority citation for 49 CFR part 38 continues to read as 
follows:

    Authority:  42 U.S.C. 12101-12213; 49 U.S.C. 322.

Sec.  38.91  [Amended]

0
13. In Sec.  38.91:
0
A. Amend paragraph (c)(1) by removing the words ``wherever structurally 
and operationally practicable'' and adding in their place the words 
``unless structurally or operationally impracticable.''
0
B. Amend paragraph (c)(2) by removing the words ``not structurally or 
operationally practicable'' and adding, in their place, the words 
``structurally or operationally impracticable''.

Sec.  38.93  [Amended]

0
14. In Sec.  38.93(d)(3), remove the period at the end of the paragraph 
and add the following words: ``,ensuring compliance with section 37.42, 
where applicable.'' in its place.

Sec.  38.95  [Amended]

0
15. In Sec.  38.95, amend the first sentence of paragraph (a)(2) by 
adding the words ``level-entry boarding,'' before the words '' portable 
or platform lifts'' and by revising the second sentence to read ``The 
access systems or devices used at a station to which section 37.42 
applies must permit compliance with that section.''

Sec.  38.111  [Amended]

0
16. In Sec.  38.111,
0
A. Amend paragraph (b)(1) by removing the words ``If physically and 
operationally practicable'' and adding in their place the words 
``Unless structurally or operationally impracticable.''
0
B. Amend paragraph (b)(2) by removing the words ``''not structurally or 
operationally practicable'' and adding, in their place, the words 
``structurally or operationally impracticable''.

Sec.  38.113  [Amended]

0
17. In Sec.  38.113, amend paragraph (d)(3) by removing the period at 
the end of the paragraph and adding the words ``ensuring compliance 
with section 37.42, where applicable'' in its place.

Sec.  38.125  [Amended]

0
18. In Sec.  38.125, amend the first sentence of paragraph (a)(2) by 
adding the words ``level-entry boarding,'' before the words '' portable 
or platform lifts'' and by adding a second sentence ``The access 
systems or devices used at a station to which section 37.42 applies 
must permit compliance with that section.'' at the end of the 
paragraph.

[FR Doc. 2011-23576 Filed 9-15-11; 11:15 am]
BILLING CODE 4910-9X-P
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