57924 Federal Register / Vol. 76, No. 181 / Monday, September 19, 2011 / Rules and Regulations 

terrestrial repeaters are not used to 

transmit local programming or 

advertising. 

47 CFR 25.144(e)(3)—SDARS licensee 

shall, before deploying any new, or 

modifying any existing, terrestrial 

repeater, notify potentially affected 

WCS licensees pursuant to the 

procedure set forth in 25.263. 

47 CFR 25.144(e)(8)—SDARS 

licensees must file an earth station 

application using Form 312 to obtain 

blanket authority for terrestrial repeaters 

operating at 12 kW EIRP (average) or 

less and in compliance with FCC rules; 

application must include certain 

parameters of operation and a 

certification that the proposed SDARS 

terrestrial repeater operations will 

comply with all the rules adopted for 

such operations. 

47 CFR 25.144(e)(9)—The operation of 

non-compliant repeaters and/or 

repeaters operating above 12 kW EIRP 

(average) must be applied for and 

authorized under individual site-by-site 

licenses using Form 312 and 

appropriate waiver of the Commission’s 

rules. 

47 CFR 25.263(b)—SDARS licensees 

are required to provide informational 

notifications as specified in 25.263, 

including requirement that SDARS 

licensees must share with WCS 

licensees certain technical information 

at least 10 business days before 

operating a new repeater, and at least 5 

business days before operating a 

modified repeater. 

47 CFR 25.263(c); Recordkeeping/ 

Third party disclosure—SDARS 

licensees operating terrestrial repeaters 

must maintain an accurate and up-todate inventory of terrestrial repeaters 

operating above 2 W EIRP, including the 

information set forth in 25.263(c)(2) for 

each repeater, which shall be made 

available to the Commission upon 

request. Requirement can be satisfied by 

maintaining inventory on a secure Web 

site that can be accessed by authorized 

Commission staff. 

Not codified (para. 278 of Order)— 

SDARS licensees must provide 

potentially affected WCS licensees with 

an inventory of their terrestrial repeater 

infrastructure. 

Federal Communications Commission. 

Avis Mitchell, 

Federal Register Liaison, Office of the 

Secretary, Office of Managing Director. 

[FR Doc. 2011–23846 Filed 9–16–11; 8:45 am] 

BILLING CODE 6712–01–P 

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. 

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 postmeeting 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, carborne 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 


tkelley on DSKG8SOYB1PROD with RULES
Federal Register / Vol. 76, No. 181 / Monday, September 19, 2011 / Rules and Regulations 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 minihigh 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 poorlymaintained 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 socalled ‘‘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 levelentry 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 minihigh 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, 


tkelley on DSKG8SOYB1PROD with RULES
57926 Federal Register / Vol. 76, No. 181 / Monday, September 19, 2011 / Rules and Regulations 

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 levelentry 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 levelentry 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, 


tkelley on DSKG8SOYB1PROD with RULES
Federal Register / Vol. 76, No. 181 / Monday, September 19, 2011 / Rules and Regulations 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 


tkelley on DSKG8SOYB1PROD with RULES
57928 Federal Register / Vol. 76, No. 181 / Monday, September 19, 2011 / Rules and Regulations 

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 minihigh 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 gapfilling 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 


tkelley on DSKG8SOYB1PROD with RULES
Federal Register / Vol. 76, No. 181 / Monday, September 19, 2011 / Rules and Regulations 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 longerterm 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 nontraditional mobility devices. It said, in 

essence, that under existing DOT 

nondiscrimination rules, regulated 

entities must accept such nontraditional 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- orfour 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 


tkelley on DSKG8SOYB1PROD with RULES
57930 Federal Register / Vol. 76, No. 181 / Monday, September 19, 2011 / Rules and Regulations 

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 nontraditional 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. 


tkelley on DSKG8SOYB1PROD with RULES
Federal Register / Vol. 76, No. 181 / Monday, September 19, 2011 / Rules and Regulations 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 wellbeing 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 oneway 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 


tkelley on DSKG8SOYB1PROD with RULES
57932 Federal Register / Vol. 76, No. 181 / Monday, September 19, 2011 / Rules and Regulations 

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. 


tkelley on DSKG8SOYB1PROD with RULES
Federal Register / Vol. 76, No. 181 / Monday, September 19, 2011 / Rules and Regulations 57933 

Miscellaneous Provisions 

Consistent with guidance issued in 

September 2005, the Department is 

amending § 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 

§ 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 

§ 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 § 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 


tkelley on DSKG8SOYB1PROD with RULES
57934 Federal Register / Vol. 76, No. 181 / Monday, September 19, 2011 / Rules and Regulations 

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 fixedroute 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 preADA 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, preempt 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 


tkelley on DSKG8SOYB1PROD with RULES
Federal Register / Vol. 76, No. 181 / Monday, September 19, 2011 / Rules and Regulations 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 levelentry 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: 

■ 1. The authority citation for part 37 

continues to read as follows: 

Authority: 42 U.S.C. 12101–12213; 49 

U.S.C. 322. 

■ 2. In § 37.3, add the definition ‘‘Direct 

threat’’ and revise the definition 

‘‘Wheelchair’’ to read as follows: 

§ 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 morewheeled devices, usable indoors, 

designed or modified for and used by 

individuals with mobility impairments, 

whether operated manually or powered. 

■ 3. Revise § 37.15 to read as follows: 

§ 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.’’ 

■ 4. In § 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.’’ 

■ 5. Add a new § 37.42, to read as 

follows: 

§ 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 


tkelley on DSKG8SOYB1PROD with RULES
57936 Federal Register / Vol. 76, No. 181 / Monday, September 19, 2011 / Rules and Regulations 

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, levelentry 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). 

§ 37.71 [Amended] 

■ 6. In § 37.71, remove the words 

‘‘Except as provided elsewhere in this 

section’’ from paragraph (a) and remove 

paragraphs (b) through (g). 

§ 37.103 [Amended] 

■ 7. In § 37.103 (b) and (c), remove the 

words ‘‘or an over-the-road bus,’’. 

■ 8. Revise § 37.165(b) to read as 

follows: 

§ 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. 

* * * * * 

§ 37.169 [Removed and reserved] 

■ 9. Remove and reserve § 37.169. 

■ 10. In § 37.193, remove paragraph 

(a)(2), remove and reserve paragraph (c), 

and redesignate paragraph (a)(3) as 

(a)(2). 

■ 11. Appendix D to Part 37 is amended 

by: 

■ A. Under Section 37.3 Definitions, 

remove the last two paragraphs and add 

four paragraphs in its place, 

■ B. Add Section 37.42 in numerical 

order, 

■ C. Revise the first paragraph under 

Section 37.71, 

■ 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.’’ 

■ 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 morewheeled 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 


tkelley on DSKG8SOYB1PROD with RULES
Federal Register / Vol. 76, No. 181 / Monday, September 19, 2011 / Rules and Regulations 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]®, 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 highspeed 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 highspeed 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 railonly 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 levelentry 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), levelentry 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 levelentry 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 stationbased 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 


tkelley on DSKG8SOYB1PROD with RULES
57938 Federal Register / Vol. 76, No. 181 / Monday, September 19, 2011 / Rules and Regulations 

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. 


tkelley on DSKG8SOYB1PROD with RULES
Federal Register / Vol. 76, No. 181 / Monday, September 19, 2011 / Rules and Regulations 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 

■ 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. 

§ 38.91 [Amended] 

■ 13. In § 38.91: 

■ 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.’’ 

■ 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’’. 

§ 38.93 [Amended] 

■ 14. In § 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. 

§ 38.95 [Amended] 

■ 15. In § 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.’’ 

§ 38.111 [Amended] 

■ 16. In § 38.111, 

■ 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.’’ 

■ 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’’. 

§ 38.113 [Amended] 

■ 17. In § 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. 

§ 38.125 [Amended] 

■ 18. In § 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 


tkelley on DSKG8SOYB1PROD with RULES