[Federal Register Volume 76, Number 181 (Monday, September 19, 2011)]
[Rules and Regulations]
[Pages 57924-57939]
[FR Doc No: 2011-23576]

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DEPARTMENT OF TRANSPORTATION

49 CFR Parts 37 and 38

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

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

AGENCY: Office of the Secretary, Department of Transportation.

ACTION: Final rule.

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

DATES: This rule is effective October 19, 2011.

FOR FURTHER INFORMATION CONTACT: Robert C. Ashby, Deputy Assistant
General Counsel for Regulation and Enforcement, Department of
Transportation, 1200 New Jersey Avenue, SE., Room 94-102, Washington,
DC 20590.<PHONE_NUMBER> (voice);<PHONE_NUMBER> (TDD),
<EMAIL_ADDRESS>(e-mail). You may also contact Bonnie Graves, in the
Office of Chief Counsel, Federal Transit Administration, same mailing
address, Room E56-306<PHONE_NUMBER>), e-mail<EMAIL_ADDRESS>and
Linda Martin, of the Office of Chief Counsel, Federal Railroad
Administration, same mailing address, room W31-304<PHONE_NUMBER>), e-
mail<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: This rule makes final a variety of changes
to the Department's ADA rules based on a notice of proposed rulemaking
(NPRM) issued February 27, 2006 (71 FR 9761) and the over 360 comments
to the NPRM. Comments came primarily from members of the transportation
industry and the disability community. In addition, the Department held
a public meeting on August 20, 2010, that resulted in in-person
comments from transportation industry and disability community
representatives and additional written comments. Generally, speakers at
the public meeting and post-meeting written comments reiterated points
made during the principal comment period on the NPRM.
    The final rule modifies the NPRM's approach to ensuring
nondiscriminatory access to rail service by establishing a performance
standard that passenger railroads would have to meet at new and altered
station platforms. The final rule does not require passenger railroads
to retrofit existing platforms. The performance standard requires that
passenger railroads ensure that passengers with disabilities can get on
and off any accessible car that is available to passengers at a station
platform. At stations where track adjacent to platforms is not shared
with existing freight service, railroads must provide level-entry
boarding. At stations where track adjacent to platforms is shared with
freight railroads, passenger railroads can meet the performance
standard through a variety of means, including level-entry boarding,
car-borne lifts, portable station-based lifts, or mini-high platforms
(with trains making multiple stops at such platforms when necessary).
Passenger railroads that choose not to provide level-entry boarding at
new or altered station platforms must get concurrence from the Federal
Transit Administration (FTA) or Federal Railroad Administration (FRA)
(or both, as the situation may warrant) for the means they choose to
meet the performance standard. As part of this process, railroads would
have to show how the means they chose to meet the performance standard
ensured the reliability and safety of integrated service to passengers
with disabilities.
    In other provisions of the final rule, the Department has codified
the existing Disability Law Coordinating Council (DLCC) as the
Department's means of coordinating ADA guidance. The final rule also
modifies the provisions of the

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

Access to Rail Cars at New or Altered Station Platforms

NPRM

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

Comments

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

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

DOT Response

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

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

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

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

Mobility Device Size and Type

NPRM

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

Comments

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

DOT Response

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

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

Definition of ``Direct Threat''

NPRM

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

Comments

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

DOT Response

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

Other Definitions

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

Counting Trip Denials and Missed Trips

NPRM

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

Comments

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

DOT Response

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

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.

Miscellaneous Provisions

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

Accessible Web Sites

NPRM and Comments

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

DOT Response

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

Bus Rapid Transit

NPRM and Comments

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

DOT Response

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

Heritage Fleets

NPRM and Comments

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

DOT Response

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

Used Demand-Response Vehicles

NPRM

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

Comments

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

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

DOT Response

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

Expansion of Key Station Requirements

NPRM and Comments

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

DOT Response

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

Reasonable Modification of Policies

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

Regulatory Analyses and Notices

Executive Order 12866

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

Federalism

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

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

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

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

Unfunded Mandates Reform Act

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

Paperwork Reduction Act

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

List of Subjects

49 CFR Part 37

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

49 CFR Part 38

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

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

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

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

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

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

Sec.  37.3  Definitions.

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

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

Sec.  37.15  Interpretations and guidance.

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

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

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

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

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

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

Sec.  37.71  [Amended]

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

Sec.  37.103  [Amended]

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

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

Sec.  37.165  Lift and securement use.

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

Sec.  37.169  [Removed and reserved]

0
9. Remove and reserve Sec.  37.169.

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

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

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

* * * * *

Section 37.3 Definitions

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

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

Section 37.42

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

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.

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

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

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

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

Sec.  38.91  [Amended]

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

Sec.  38.93  [Amended]

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

Sec.  38.95  [Amended]

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

Sec.  38.111  [Amended]

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

Sec.  38.113  [Amended]

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

Sec.  38.125  [Amended]

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

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