27 February 2006
[Federal Register: February 27, 2006 (Volume 71, Number 38)]
[Proposed Rules]
[Page 9761-9770]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27fe06-26]
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DEPARTMENT OF TRANSPORTATION
49 CFR Parts 27, 37, and 38
[Docket OST-2006-23985]
RIN 2105-AD54
Transportation for Individuals With Disabilities
AGENCY: Department of Transportation, Office of the Secretary.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Department is proposing to amend its Americans with
Disabilities Act (ADA) and section 504 regulations to update
requirements concerning rail station platforms, clarify that public
transit providers are required to make modifications to policies and
practices to ensure that their programs are accessible to individuals
with disabilities, and codify the Department's practice concerning the
issuance of guidance on disability matters.
Comment Closing Date: Comments should be submitted by April 28,
2006 for the proposed regulatory changes in this notice. Comments
should be submitted by May 30, 2006 for responses to the seven items
under the heading ``Request for Comment on Other Issues.'' Late-filed
comments will be considered to the extent practicable.
ADDRESSES: You may submit comments identified by the docket number
[OST-
[[Page 9762]]
2006-23985] by any of the following methods:
Web site: http://dms.dot.gov. Follow the instructions for
submitting comments on the DOT electronic docket site.
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Fax: 1-202-493-2251.
Mail: Docket Management System; U.S. Department of
Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401,
Washington, DC 20590-001.
Hand Delivery: To the Docket Management System; Room PL-
401 on the plaza level of the Nassif Building, 400 Seventh Street, SW.,
Washington, DC between 9 a.m. and 5 p.m., Monday through Friday, except
Federal Holidays.
Instructions: You must include the agency name and docket number
[OST-2006-23985] or the Regulatory Identification Number (RIN) for this
notice at the beginning of your comment. Note that all comments
received will be posted without change to http://dms.dot.gov including
any personal information provided. Please see the Privacy Act section
of this document.
Docket: You may view the public docket through the Internet at
http://dms.dot.gov or in person at the Docket Management System office
at the above address.
FOR FURTHER INFORMATION CONTACT: Robert C. Ashby, Deputy Assistant
General Counsel for Regulation and Enforcement, Department of
Transportation, 400 7th Street, SW., Room 10424, Washington, DC 20590.
(202) 366-9306 (voice); (202) 755-7687 (TDD), bob.ashby@dot.gov (e-
mail). You may also contact Bonnie Graves, in the Office of Chief
Counsel for the Federal Transit Administration, same mailing address,
Room 9316 (202-366-4011), e-mail bonnie.graves@fta.dot.gov; and Richard
Cogswell, of the Office of Railroad Development in the Federal Railroad
Administration, VFRA Stop 20, 1120 Vermont Avenue, NW., Washington, DC
20005 (202-493-6388), e-mail richard.cogswell@fra.dot.gov.
SUPPLEMENTARY INFORMATION: This proposed rule concerns two main
substantive subjects, reasonable modifications to policies and
practices of transportation providers and platform accessibility in
commuter and intercity rail systems.
Reasonable Modifications of Policies and Practices
In proposed amendments to 49 CFR 37.5 and 37.169, the NPRM would
clarify that transportation providers, including, but not limited to,
public transportation entities required to provide complementary
paratransit service, must make reasonable modifications to their
policies and practices to ensure program accessibility. Making
reasonable modifications to policies and practices is a fundamental
tenet of disability nondiscrimination law, reflected in a number of
Department of Transportation (DOT) and Department of Justice (DOJ)
regulations (e.g., 49 CFR 27.11(c) (3), 14 CFR 382.7(c); 28 CFR
35.130(b)(7)).
However, the DOT ADA regulations do not include language
specifically requiring regulated parties to make reasonable
modifications to policies and practices. The Department, when drafting
49 CFR part 37, assumed that Sec. 37.21(c) would incorporate the DOJ
provisions on this subject, by saying the following:
Entities to which this part applies also may be subject to ADA
regulations of the Department of Justice (28 CFR parts 35 or 36, as
applicable). The provisions of this part shall be interpreted in a
manner that will make them consistent with applicable Department of
Justice regulations.
Under this language, provisions of the DOJ regulations concerning
reasonable modifications of policies and practices applicable to public
entities, such as 28 CFR 35.130(b)(7), could apply to public entities
regulated by DOT, while provisions of DOJ regulations on this subject
applicable to private entities (e.g., 28 CFR 36.302) could apply to
private entities regulated by DOT. The one court decision that, until
recently, had addressed the issue appeared to share the Department's
assumption about the relationship between DOT and DOJ requirements (see
Burkhart v. Washington Area Metropolitan Transit Authority, 112 F.3d
1207; DC Cir., 1997).
However Melton v. Dallas Area Rapid Transit (DART), 391 F. 3d 691;
5th Cir., 2004; cert. denied 125 S. Ct. 2273 (2005) took a contrary
approach. In this case, the court upheld DART's refusal to pick up a
disabled paratransit passenger in a public alley in back of his house,
rather than in front of his house (where a steep slope allegedly
precluded access by the passenger to DART vehicles). DART argued in the
case that paratransit operations are not covered by DOJ regulations.
``Instead,'' as the court summarized DART's argument, ``paratransit
services are subject only to Department of Transportation regulations
found in 49 CFR part 37. The Department of Transportation regulations
contain no analogous provision requiring reasonable modification to be
made to paratransit services to avoid discrimination.'' (391 F.3d at
673).
The court essentially adopted DART's argument, noting that the
permissive language of Sec. 37.21(c) (``may be subject'') did not
impose coverage under provisions of DOJ regulations which, by their own
terms, said that public transportation programs were ``not subject to
the requirements of [28 CFR part 35].'' See 391 F.3d at 675. ``It is
undisputed,'' the court concluded
That the Secretary of Transportation has been directed by
statute to issue regulations relating specifically to paratransit
transportation. Furthermore, even if the Secretary only has the
authority to promulgate regulations relating directly to
transportation, the reasonable modification requested by the Meltons
relates specifically to the operation of DART's service and is,
therefore, exempt from [DOJ] regulations in 28 CFR part 35 (Id.)
When a public entity like DART is operating under a plan approved by
the Federal Transit Administration (FTA) under part 37, in the court's
view, it is not required to make any further modifications in its
service to meet ADA nondiscrimination requirements (Id.)
While the Melton decision is the controlling precedent only in the
states covered by the 5th Circuit, the Department believes that it
would be useful to amend its rules to clarify, nationwide, that public
entities that provide designated public transportation, including but
not limited to complementary paratransit, have the obligation to make
reasonable modifications in the provisions of their services when doing
so is necessary to avoid discrimination or provide program
accessibility to services. The Department will do so by proposing to
add language to a number of provisions of its ADA and 504 regulations.
First, in Sec. 37.5, the general nondiscrimination section of the
ADA rule, the Department would add a paragraph requiring all public
entities providing designated public transportation to make reasonable
modifications to policies and practices where needed to avoid
discrimination on the basis of disability or to provide program
accessibility to services. The language is based on DOJ's requirements
and, like the DOJ regulation, does not require a modification if it
would create an undue burden or fundamentally alter the nature of the
entity's service.
Parallel language would be placed in revised Sec. 37.169,
replacing an obsolete provision pertaining to over-the-road buses.
Under the proposed language, the head of an entity would have to make a
written determination that a needed
[[Page 9763]]
reasonable modification created an undue burden or fundamental
alteration. The entity would not be required to seek DOT approval for
the determination, but DOT could review the entity's action (e.g., in
the context of a complaint investigation or compliance review) as part
of a determination about whether the entity had discriminated against
persons with disabilities. In the case where the entity determined that
a requested modification created an undue burden or fundamental
alteration, the entity would be obligated to seek an alternative
solution that would not create such an undue burden or fundamental
alteration.
The Department wants to make sure that transit providers understand
that the proposed new language concerning modification of policies, as
well as other new provisions of the rule, are incorporated in the
obligations that transit providers assume through their financial
assistance relationships with FTA. In this connection, we would point
out standard language in the FTA Master Agreement:
The Recipient acknowledges that Federal laws, regulations,
policies, and related administrative practices applicable to the
Project on the date FTA's authorized official signs the Grant
Agreement or Cooperative Agreement may be modified from time to
time. In particular, new Federal laws, regulations, policies, and
administrative practices may be promulgated after the date when the
Recipient executes the Grant Agreement or Cooperative Agreement, and
might apply to that Grant Agreement or Cooperative Agreement. The
Recipient agrees that the most recent of such Federal requirements
will govern the administration of the Project at any particular
time, unless FTA issues a written determination otherwise. Master
Agreement at Section 2(c), Application of Federal, State, and Local
Laws and Regulations
While it appears to the Department that this language is sufficient, we
seek comment on whether any additional regulatory text language is
needed on this point.
We would point out that language in the existing paratransit
requirements of part 37 has an effect on paratransit providers very
similar to that of the proposed reasonable modification language. 49
CFR 37.129(a) provides that, with the exception of certain situations
in which on-call bus service or feeder paratransit service is
appropriate, ``complementary paratransit service for ADA paratransit
eligible persons shall be origin-to-destination service.'' This
language was the subject of a recent guidance document posted on the
Department's Web sites.
This guidance notes that the term ``origin to destination'' was
deliberately chosen to avoid using either the term ``curb-to-curb''
service or the term ``door-to-door'' service and to emphasize the
obligation of transit providers to ensure that eligible passengers are
actually able to use paratransit service to get from their point of
origin to their point of destination.
The preamble discussion of this provision made the following
points: Several comments asked for clarification of whether [origin-
to-destination] service was meant to be door-to-door or curb-to-
curb, and some recommended one or the other, or a combination of the
two. The Department declines to characterize the service as either.
The main point, we think, is that the service must go from the
user's point of origin to his or her destination point. It is
reasonable to think that service for some individuals or locations
might be better if it is door-to-door, while curb-to-curb might be
better in other instances. This is exactly the sort of detailed
operational decision best left to the development of paratransit
plans at the local level. (56 FR 45604; September 6, 1991; emphasis
added.)
In the local paratransit planning process, it would be consistent
with this provision for a transit provider to establish either door-to-
door or curb-to-curb service as the basic mode of paratransit service.
Where the local planning process establishes curb-to-curb service as
the basic paratransit service mode, however, provision should still be
made to ensure that the service available to each passenger actually
gets the passenger from his or her point of origin to his or her
destination point. To meet this origin to destination requirement,
service may need to be provided to some individuals, or at some
locations, in a way that goes beyond curb-to-curb service.
For instance, the nature of a particular individual's disability,
adverse weather conditions, or terrain obstacles may prevent him or her
from negotiating the distance from the door of his or her home to the
curb. A physical barrier (e.g., sidewalk construction) may prevent a
passenger from traveling between the curb and the door of his or her
destination point. In these and similar situations, to ensure that
service is actually provided ``from the user's point of origin to his
or her destination point,'' the service provider may need to offer
assistance beyond the curb, even though the basic service mode for the
transit provider remains curb-to-curb.
Meeting this ``origin to destination'' requirement may well involve
what is, in effect, a modification of an otherwise reasonable general
policy provided for in an entity's paratransit plan. Like any
reasonable modification, such assistance would not need to be provided
if it created an undue burden or fundamental alteration. For example,
the Department does not view transit providers' functions as extending
to the provision of personal services. Drivers would not have to
provide services that exceed ``door-to-door'' service (e.g., go beyond
the doorway into a building to assist a passenger). Nor would drivers,
for lengthy periods of time, have to leave their vehicles unattended or
lose the ability to keep their vehicles under visual observation, or
take actions that would present a direct threat to safety. These
activities would come under the heading of ``fundamental alteration''
or ``undue burden.''
In the interest of clarifying the Department's section 504
regulation, as well as its ADA regulation, on the issue of reasonable
modifications of policies and practices, the Department is also
proposing an amendment to 49 CFR part 27. This regulation, in Sec.
27.11(c)(2)(iii), already requires recipients of DOT financial
assistance to ``begin to modify * * * any policies or practices that do
not meet the requirements of this part.'' To avoid any possibility of
misunderstanding with respect to the obligation to make reasonable
modifications, however, we propose to add a new paragraph (e) to the
general nondiscrimination section. The language of this section is
similar to that of proposed Sec. 37.5(g) in the ADA regulation.
Consistent with the addition of the ``modifications of policies and
practices'' language, we are also adding a definition of ``direct
threat,'' using the language of the DOJ regulations (see 36 CFR
207(b)). It is important to note that, in order to be a basis for
placing restrictions on access to individuals with disabilities, a
transit provider would have to determine that a direct threat exists to
the health or safety of others. The direct threat provision is not
intended to permit restrictions that are aimed solely at protecting
people with disabilities themselves. Moreover, a finding of direct
threat must be based on evidence, not merely on speculation or
apprehension about the possibility of a safety problem. In three
different rulemakings (concerning use of three-wheeled scooters on
transit vehicles, the accessibility of bus stops, and requirements for
over-the-road buses), the Department has consistently emphasized that
placing restrictions on access is not permissible in the absence of
meeting a stringent direct threat standard. Transportation providers
would not be required to seek the
[[Page 9764]]
Department's approval before applying the direct threat standard in a
particular case. However, they should document such applications for
possible FTA review in the context of compliance reviews or complaint
investigations.
In considering the effect of the ``reasonable modification''
language on paratransit operators, the Department wants to emphasize,
in the strongest possible terms, that operators are not required to
change their basic mode of service provision. An operator that has
chosen ``curb-to-curb'' service is not required to change its system to
be a ``door-to-door'' system for everyone. However, a ``curb-to-curb''
operator, in individual situations where it was genuinely necessary to
take additional steps to ensure that a passenger can actually use the
service, would have an obligation to make exceptions to its normal
policy subject, as always, to the ``direct threat'' and ``undue burden/
fundamental alteration'' limitations. Because of the limited, case-by-
case nature of these exceptions, the Department believes that the
proposed amendment would not have significant cost implications, but we
seek comments on all the implications of the proposal.
We would also note that the effect of this proposal is not limited
to paratransit. For example, fixed route bus systems often have a
policy of stopping only at designated bus stops. However, there may be
instances where there is a barrier at a particular bus stop to its use
by passengers with disabilities (e.g., construction, snowdrifts). In
such a case, where it would not be unduly burdensome or pose a direct
threat, it would be appropriate for the bus to move a short distance
from the stop to pick up a passenger using a wheelchair at a place
where the passenger could readily board the vehicle.
In addition to the ``modification of policies'' language from the
DOJ ADA rules, there are other features of those rules that are not
presently incorporated in the DOT ADA rules (e.g., pertaining to
auxiliary aids and services). The Department seeks comment on whether
it would be useful to incorporate any additional provisions from the
DOJ rules into part 37.
Commuter and Intercity Rail Station Platform Accessibility
The second substantive change to the Department's ADA rules
concerns rail station platforms in commuter and intercity rail modes.
The revised Sec. 37.41 would replace, for purposes of these modes,
material presently found in Sec. 10.3.1(9) of Appendix A to Part 37.
One of the purposes of this amendment is to maintain the status quo
with respect to this requirement, given the adoption by DOT of the new
ADAAG standards, which do not include this language. The NPRM would
also make conforming amendments to provisions in 49 CFR part 38
concerning commuter rail and intercity rail cars.
Under the present Sec. 10.3.1(9), level entry boarding is defined,
in effect, as involving a vertical gap between car entrances and
platform of no more than \5/8\ inch, with a horizontal gap of no more
than 3 inches. Exception 2 to Sec. 10.3.1(9) provides that, ``where it
is not operationally or structurally feasible to meet the horizontal
gap or vertical difference requirement, mini-high platforms, car-borne
or platform-mounted lifts, ramps or bridge plates, or similar manually
deployed devices * * * shall suffice.'' Consistent with a recent
guidance/interpretation document issued by the Department, this
language should not be viewed as providing an unconstrained choice
among various alternatives.
The Department strongly believes that, in choosing accessibility
solutions, it is important--as the Department's 504 regulation has long
stated (see 49 CFR 27.7(b)(2))--that service be provided ``in the most
integrated setting that is reasonably achievable.'' In proposed
Sec. Sec. 37.5(h) and 37.169(c), the Department proposes to
specifically include this principle in its ADA regulation as well. The
implication of this principle in the rail station context is that the
accessibility solution that provides service the most integrated
setting should be chosen.
In the course of recent discussions with one rail system about its
proposed platform design, a serious problem with the existing
provisions of Sec. 10.3.1(9) came to light. Because of physical and
operational characteristics of intercity and commuter rail systems--as
distinct from light and rapid rail systems--Federal Railroad
Administration (FRA) staff advised that the 3 inch and \5/8\ inch gap
requirements were unrealistic: i.e., it is very unlikely that any
commuter or intercity rail system could ever meet these requirements.
An FRA staff paper discussing this issue in greater detail has been
placed in the docket for this rulemaking. The Department seeks comment
on whether any other matters raised in this paper should be added to
the ADA regulation, or whether a version of this paper should be made
an appendix to the final rule.
To address both the technical feasibility and integrated,
accessible service issues, the Department is proposing to revise
platform design requirements. It should be noted that these
requirements are intended to apply to new commuter and intercity rail
facilities and systems. The Department seeks comment on whether the
same approach should be followed with respect to alterations to
existing stations and to commuter rail key stations and intercity rail
stations that have not yet been modified for accessibility as required
by the ADA, and on cost, feasibility, or other issues that may arise in
that context.
Under the proposed Sec. 37.41, level-entry boarding is the basic
requirement. If the original 3 inch and \5/8\ inch gap requirements can
be met, then nothing further need be done. Otherwise, platforms (in
coordination with cars) must meet a maximum 10-13 inch horizontal gap
requirement. With respect to the vertical gap, the requirement would be
that the vertical gap between the car floor and the boarding platform
would be able to be mitigated by a bridge plate or ramp with a 1:8
slope or less, under a 50% passenger load consistent with 49 CFR
38.95(c). Such gaps are typical of longstanding passenger rail systems
and do not present a hazard to boarding for the majority of passengers.
Bridge plates would be used to connect the platform with each
accessible car to facilitate independent boarding by wheelchair users
and other passengers who cannot step across the platform gaps. This
means that it is not adequate to provide access to some cars but not
others, which is contrary to the principle of providing service in an
integrated setting. The only exception would be for an old,
inaccessible car being used on the system (e.g., certain 1950s-era two-
level cars still being used on some systems, which cannot readily be
entered and used by most persons with disabilities even if platform and
door heights are coordinated). The Department seeks comment on whether
a ramp slope of 1:8 provides an appropriate opportunity for independent
access to cars by wheelchair users. If not, what sort of assistance, if
any, would be appropriate to require? We note that, in some systems,
requiring a slope less steep than 1:8 might require bridge plates or
ramps to be impractically long.
The Department seeks comment on any operational issues that could
arise in the context of level-entry boarding to all cars in a train
(e.g., dwell time or headway issues resulting from deployment--
particularly manual deployment--of bridge plates or ramps). As with any
proposal, we seek comment on any cost or feasibility issues that could
be involved.
[[Page 9765]]
Only if the rail system determines--with the concurrence of the FRA
or Federal Transit Administration (FTA) Administrator--that meeting
these requirements is operationally or structurally infeasible could
the rail system use an approach not involving level-entry boarding,
such as mini-high platforms or lifts. Even in such a case, the rail
system would have to ensure that access was provided to each accessible
car on a train. The concept we have of infeasibility is twofold. On one
hand, there could be some situations in which, from a design or
engineering point of view, meeting these requirements simply cannot be
done. On the other hand, there could be situations in which meeting the
requirements creates an undue burden. We believe from our experience
that situations falling into either of these categories are likely to
be extremely rare, but we think it would be useful to have a mechanism
in the regulation for assessing any situations that may arguably fall
into one of them. We also seek comment on whether there are any
``bright line'' criteria that the Department might usefully add to this
section to assist transit providers in determining whether meeting the
proposed requirements is infeasible in a given situation.
The Department is aware that, on a range of issues, there can be
disagreements between commuter rail authorities and freight railroads
whose track the commuter railroads use. Where any such disagreements
pertain to the accessibility of a commuter rail station, we believe
that 49 CFR 37.57 (based on a statutory provision in the ADA, 42 U.S.C.
12162(e)(2)(C)) is relevant. This section provides that ``An owner or
person in control of an intercity or commuter rail station shall
provide reasonable cooperation to the responsible person(s) for that
station with respect to the efforts of the responsible person to comply
with the requirements of this subpart.'' We seek comment on whether any
additions to this provision are necessary in order to ensure that
disagreements between freight railroads and commuter rail authorities
or Amtrak do not thwart the efforts of passenger railroads to ensure
accessibility to passenger stations.
In some existing and proposed systems using mini-high platforms set
back from the platform edge, the platform design has had the effect of
channeling passengers into a narrow space between the face of the
higher-level platform and the edge of the lower platform. The FRA
regards such an arrangement as a hazard to passenger safety, since it
may place passengers uncomfortably close to moving trains. Consequently
the proposed rule would prohibit such designs. In addition, following
FRA safety advice, the proposed rule would require that any
obstructions on a platform (stairwells, elevator shafts, seats, etc.)
must be set at least 6 feet back from the edge of a platform.
To ensure coordination of these requirements for platform
accessibility with rail cars, a proposed amendment to Sec. 37.85 would
require new cars purchased for commuter rail systems to have floor
heights identical to those of Amtrak cars serving the area in which the
commuter system will be operated. This means that cars in the eastern
part of the U.S. would have floor heights of 48 inches above top of
rail, while those in the western part of the U.S. would have floor
heights of 15 inches above top of rail. The purpose of this proposal is
to prevent situations--some of which the Department has encountered--in
which Amtrak and commuter rail cars with different floor heights use
the same station platforms, complicating the provision of level entry
boarding.
The Department assumes that the interior car floor will remain
level with the car entrance for a sufficient distance to permit level
entry to wheelchair positions in the car. The Department seeks comment
on whether it is necessary to make this point part of the regulatory
text.
Disability Law Coordinating Council
In addition to these two main topics, the proposal would codify an
existing internal administrative mechanism used to coordinate DOT
guidance and interpretations on disability-related matters. Under a
March 2003 memorandum signed by Secretary of Transportation Norman
Mineta, the Department uses an internal working group known as the
Disability Law Coordinating Council (DLCC) to review written guidance
and interpretations before they are issued by any of the Department's
offices. The purpose of the DLCC is to ensure that guidance and
interpretations are consistent among DOT offices and consistent with
the Office of the Secretary regulations that carry out the Americans
with Disabilities Act (ADA), section 504 of the Rehabilitation Act, and
the Air Carrier Access Act (49 CFR part 37 and 38, 49 CFR part 27, and
14 CFR part 382, respectively). Under the Secretary's memorandum,
written guidance and interpretations on these matters must be approved
by the Department's General Counsel.
The DLCC mechanism is in place and functioning effectively. The
proposed regulatory change will codify this procedure and provide
better notice to the public and greater certainty over time about this
feature of the Department's implementation of its disability
nondiscrimination responsibilities. This codified provision would
revise 49 CFR 37.15 to parallel existing provisions of other
Department-wide regulations, namely the disadvantaged business
enterprise regulation (49 CFR 26.9(b)) and drug testing procedures
regulation (49 CFR 40.5). The proposed language would replace existing
Sec. 37.15, an obsolete provision concerning a now-lapsed suspension
of certain requirements pertaining to detectable warnings.
Clarification of Sec. 37.23
The NPRM would also clarify Sec. 37.23. This section provides that
when a public entity enters into a contract or other arrangement or
relationship with a private entity to provide service, the public
entity must ensure that the private entity meets the requirements that
would apply if the public entity provided the service itself. The NPRM
would add a parenthetical making explicit what the Department has
always intended: That an ``arrangement or relationship'' other than a
contract includes arrangements and relationships such as grants,
subgrants, and cooperative agreements. The additional words, which are
consistent with an interpretation of the existing language that the
Department recently posted on its Web sites, ensures that a passenger
with a disability will be provided the appropriate level of service,
whether a private entity providing the service does so through a
contract with a public entity or otherwise receives funding through the
public entity.
Deletion of Obsolete Provisions
Finally, the NPRM would delete certain obsolete provisions,
including Sec. Sec. 37.71 (b)-(g), 37.77, 37.103 (b) and (c) (language
referring to over-the-road buses), and 37.193 (a) (2) and (c). The
first two deletions concern a waiver procedure for situations in which
accessible buses were not available from manufacturers. This waiver
provision was included in response to concerns that, when the ADA rule
went into effect in 1991, there would be a shortage of accessible buses
available to transit authorities. That is no longer a reasonable
apprehension, and the waiver provision has never been used. The latter
two provisions concern over-the-road bus service, and have been
overtaken by events, notably the 1998 issuance of an over-the-road bus
[[Page 9766]]
regulation (codified at Part 37, Subpart H).
Request for Comment on Other Issues
We also seek comment on several issues that the current regulation
does not explicitly address.
1. One of the current issues of interest to the transit community
concerns ``bus rapid transit'' (BRT). FTA recently held a conference on
accessibility of BRT systems. Generally, FTA has expressed the view
that BRT vehicles should be treated as buses for ADA purposes and that
ramp slopes (e.g., for a ramp or bridge plate between a vehicle and a
platform) should be measured from the height of the surface of the
boarding platform. Other issues that have been raised concern where, if
at all, detectable warnings should be required; whether interior
circulation requirements should differ from those for buses; what
requirements should pertain to vehicles that are boarded from the left
as well as the right side at some stations/stops; how to handle vehicle
and stop accessible requirements in systems that have both platform and
street-level boarding; and whether mobility aid securement systems are
necessary. The Department seeks comment on these or other issues
concerning BRT accessibility, and on what, if any, specific provisions
should be added to parts 37 and 38 concerning BRT.
2. On occasion, the Department receives questions about rail
stations that were not originally identified as key stations, because
they did not meet the criteria for key stations. However, circumstances
have changed (e.g., when a station becomes a major destination due to
new development, such as a stadium, convention center, etc.), placing
the station within one or more of the criteria. In this situation,
should transit authorities have any responsibility for identifying the
station as an addition to their list of key stations and making
accessibility modifications? What, if any, procedures should the
regulation provide in such instances?
3. ``Heritage fleets'' are fleets of vintage streetcars acquired in
the global marketplace for use in regular revenue service (the Market
Street line in San Francisco is a well-known example). In some cases,
an entire fleet used on a system or line will consist of restored
``vintage'' streetcars operated over newly-laid tracks. Many provisions
of the Department's rules may not readily apply in such situations
(e.g., the exception for historical systems, the ``one car per train''
rule, the ``good faith efforts'' provision for used vehicles). If the
heritage streetcars cannot be made accessible without compromising
their structural integrity, there might be no way of ensuring
accessibility to such systems under the present rule. Is it acceptable
to have completely inaccessible heritage trolley systems? If not, what,
if any changes in the regulation should be made to address
accessibility issues in these systems?
4. The existing intercity rail section of the ADA itself and DOT
regulations speak specifically to Amtrak. The Department recognizes
that other rail projects (e.g., for high-speed rail) or changes in the
way that rail service between cities is provided could result in
service not provided by Amtrak. What, if any, changes to the regulation
should the Department contemplate in order to require appropriate
accessibility in rail service between cities provided by someone other
than Amtrak?
5. The Department seeks comment on an issue concerning vehicle
acquisition by public entities operating demand responsive systems for
the general public. Unlike public fixed route operators (see Sec.
37.73), operators of demand responsive systems for the general public
are not required, under Sec. 37.77, to make good faith efforts to find
accessible vehicles when acquiring used vehicles. We request comment on
whether the absence of such a provision has been a problem, and on
whether we should add a used vehicle provision of this kind to Sec.
37.77.
6. From time to time, there are changes in mobility devices used by
individuals with disabilities. For example, the Department recently
issued guidance concerning the use of ``Segways'' on transit vehicles.
Another example concerns wheelchairs that do not fit the Department's
existing definition of a ``common wheelchair'' (a three-or four-wheeled
mobility device that, together with its user, does not exceed 600
pounds and fits a specific dimensional envelope. Some newer wheelchair
designs have six wheels, rather than three or four; others may be
longer, wider, or heavier than contemplated by the current definition.
The Department seeks comment on how best to accommodate such change,
while still providing certainty to designers and manufacturers of
vehicles.
7. 49 CFR part 38 contains requirements for the designation and
signage of priority seating for individuals with disabilities in
several modes: Sec. 38.27 for buses, Sec. 38.55 for light rail, Sec.
38.75 for rapid rail, and, Sec. 38.105 for commuter rail. There are no
parallel requirements for intercity rail and over-the-road bus. We seek
comment on whether it would be useful to add priority seating
requirements in these other modes. We also seek comment on whether any
provisions of Sec. 37.167, concerning the implementation of priority
seating provisions, should be modified.
8. Finally, the Department seeks comment on the matter of how
providers of ADA paratransit should count trips. The Department's ADA
implementing regulations prohibit ``substantial numbers of trip denials
or missed trips'' for purposes of providing complementary paratransit
service that is comparable to the fixed-route system. This issue
concerns how missed or denied trips should be counted, in order to
provide a consistently applied measure to all FTA-assisted transit
systems.
The key objective of the ADA is to ensure the nondiscriminatory
provision of transportation service to individuals with disabilities.
Denied or missed trip statistics are a useful performance measure of
the degree to which paratransit providers meet their passenger service
obligations.\1\ From this passenger service perspective, a missed or
denied trip should be viewed as any trip that an eligible passenger
seeks to take that, as a practical matter, he or she is unable to take
because of the action of the transit provider.
---------------------------------------------------------------------------
\1\ A ``denied'' trip involves a situation where an eligible
passenger attempts to schedule a trip in a timely fashion but is
told by the transit provider that the trip cannot be scheduled as
the Department's ADA rules require. A ``missed'' trip is one that
has been scheduled, but then is not completed successfully because
of an action of the transit provider (e.g., the vehicle does not
show up). The discussion of counting trips applies equally to missed
and denied trips.
---------------------------------------------------------------------------
In our view, the simplest and clearest approach is to think of each
individual leg of a journey as a trip. If a passenger's journey goes
from Point A to Point B, and then back from Point B to Point A, the
passenger has taken two trips. If a passenger's journey goes from Point
A to Point B, then from Point B to Point C, and finally from Point C
back to Point A, the passenger has taken three trips.
For example, suppose an eligible passenger calls a paratransit
operator in a timely manner and asks to schedule a trip the next day
from Point A to Point B at 9 a.m. and a return trip from Point B to
Point A at 1 p.m. The transit operator tells the individual that it can
provide the return trip from B to A, but that a vehicle to provide the
initial trip from A to B is unavailable. From the point of view of the
passenger--which we believe to be the most relevant point of view in
evaluating ADA-mandated services--the action of the paratransit
[[Page 9767]]
provider in denying the initial trip has made it impossible for him or
her to take the return trip as well. Because the paratransit provider
will not take the passenger from Point A to Point B, the passenger will
never arrive at Point B. The action of the provider precludes the
passenger from traveling from Point B to Point A just as effectively as
if the provider had told the passenger that no vehicle was available
for the trip.\2\
---------------------------------------------------------------------------
\2\ This point applies equally if the transit provider was able
to supply the initial trip from Point A to Point B, but not the
return. In this case, the passenger would be precluded from taking
the initial trip because he or she would be stranded at Point B.
---------------------------------------------------------------------------
If the passenger was successfully provided both the initial and
return trips, it would be reasonable to count two trips made. Since the
passenger in this hypothetical case was, by action of the paratransit
provider, precluded from taking both trips, it is reasonable to count
two trips denied. We do not believe it would be reasonable to treat as
a ``refusal'' of a trip by a passenger a situation in which the
passenger's journey is precluded by the paratransit provider's own
actions. In this situation, there is not a real offer to the passenger
of the transportation he or she has requested, and it is reasonable to
count both legs of the trip as having been denied.
Of course, if a passenger is able to compensate for the unavailable
trip (e.g., by taking a taxi or getting a ride with a family member)
and is then able to accept the return trip, one trip has been taken and
only one trip has been denied.
This approach recognizes that a shortage of capacity at one time of
the day can have a ripple effect that affects the true availability of
passenger service at other times. In addition, treating paratransit
trips in this way will enable all providers to count successes and
failures in service provision in a consistent manner. It should also
create greater comparability across transit systems and improve the
Federal Transit Administration's ability to monitor grantees' program
performance.
We recognize, however, that information on the actual availability
of vehicles to make trips at particular times of day can be very
helpful to transit properties for planning purposes (e.g., in
determining future acquisition needs). The set of statistics discussed
above, while very important for determining transit providers' success
in meeting ADA passenger service requirements, may not be ideally
suited to this separate purpose. Consequently, transit operators might
want to keep a second, separate set of statistics on vehicle
availability for their own planning purposes. The Department seeks
comment on the Department's approach to this issue.
For all the issues discussed in this section, the Department seeks
comment on whether it is advisable to add regulatory text language or
whether it would be sufficient to provide guidance to recipients.
Regulatory Analyses and Notices
This NPRM is nonsignificant 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 and the obligation
of paratransit providers and other regulated entities to make
reasonable modifications of policies and practices to accommodate the
needs of persons with disabilities in individual cases. These proposals
do not represent significant departures from existing regulations and
policy and are not expected to have noteworthy cost impacts on
regulated parties. As with all rulemakings, however, the Department
will consider comments related to costs (e.g., with respect to
operations) that could be involved. The NPRM also codifies existing
internal administrative practices concerning disability law guidance.
This proposal would have no cost impacts on regulated parties. The rule
does not have Federalism impacts sufficient to warrant the preparation
of a Federalism Assessment.
The Department certifies that this rule will not have a significant
economic effect on a substantial number of small entities. The rule may
affect actions of some small entities (e.g., small paratransit
operations). The proposed amendment to Sec. 37.23 is merely a
clarification reflecting the Department's interpretation of its current
language, and in any case is unlikely to affect a substantial number of
operators (i.e., because the number of small subgrantees that operate
fixed-route systems is not expected to be large). Since operators can
provide service in a demand-responsive mode (e.g., route deviation)
that does not require the provision of complementary paratransit, and
because the undue burden waiver provision of Sec. 37.151-37.155,
significant financial impacts on any given operator are unlikely. As
with all rulemakings, however, the Department will consider comments
related to costs that could be involved. As a general matter, compared
to the existing rule, the matters discussed in the NPRM should not have
noticeable incremental economic effects on small entities.
There are a number of other statutes and Executive Orders that
apply to the rulemaking process that the Department considers in all
rulemakings. However, none of them is relevant to this NPRM. These
include the Unfunded Mandates Reform Act (which does not apply to
nondiscrimination/civil rights requirements), the National
Environmental Policy Act, E.O. 12630 (concerning property rights), E.O.
12988 (concerning civil justice reform), and E.O. 13045 (protection of
children from environmental risks).
List of Subjects
49 CFR Part 27
Administrative Practice and Procedure, Airports, Civil Rights,
Handicapped, Individuals with Disabilities, Highways and Roads,
Reporting and Recordkeeping Requirements, Transportation
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 15th Day of February, 2006, at Washington, DC.
Norman Y. Mineta,
Secretary of Transportation.
For the reasons set forth in the preamble, the Department of
Transportation proposes to amend 49 CFR parts 27, 37, and 38 as
follows:
PART 27--NONDISCRIMINATION ON THE BASIS OF DISABILITY IN PROGRAMS
OR ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE
1. The authority citation for 49 CFR part 27 continues to read as
follows:
Authority: Section 504 of the Rehabilitation Act of 1973, as
amended (29 U.S.C. 794); sec. 16 (a) and (d) of the Federal Transit
Act of 1964, as amended (49 U.S.C. 5310(a) and (f)); sec. 165(b) of
the Federal-aid Highway Act of 1973, as amended (23 U.S.C. 142 nt.).
2. In 49 CFR part 27, amend Sec. 27.7 by adding a new paragraph
(e), to read as follows:
Sec. 27.7 Discrimination prohibited
* * * * *
[[Page 9768]]
(e) Recipients shall make reasonable modifications in policies,
practices, or procedures when the modifications are necessary to avoid
discrimination on the basis of disability or to provide program
accessibility to its services, unless the recipient can demonstrate
that making the modifications would fundamentally alter the nature of
the service, program, or activity, or would result in undue
administrative or financial burdens.
PART 37--TRANSPORTATION SERVICES FOR INDIVIDUALS WITH DISABILITIES
(ADA)
3. The authority citation for part 37 continues to read as follows:
Authority: 42 U.S.C. 12101-12213; 49 U.S.C. 322.
Sec. 37.3 [Amended]
4. In Sec. 37.3, add a definition of ``direct threat'' following
the definition of ``designated public transportation,'' to read as
follows:
``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.
5. Amend Sec. 37.5 by redesignating paragraphs (g) and (h) as
paragraphs (i) and (j), respectively, and adding new paragraphs (g) and
(h), to read as follows:
Sec. 37.5 Nondiscrimination.
* * * * *
(g) Public entities providing designated public transportation
services shall make reasonable modifications in policies, practices, or
procedures when the modifications are necessary to avoid discrimination
on the basis of disability or to provide program accessibility to its
services, unless the public entity can demonstrate that making the
modifications would fundamentally alter the nature of the service,
program, or activity, or would result in undue administrative or
financial burdens.
(h) In choosing among alternatives for meeting nondiscrimination
and accessibility requirements with respect to new, altered, or
existing facilities, or designated or specified public transportation
services, public and private entities shall give priority to those
methods that offer services, programs, and activities to qualified
individuals with disabilities in the most integrated setting that is
reasonably achievable.
6. 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 are valid and binding, and constitute the official position of
the Department of Transportation, 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 14 CFR part 382,
as applicable.
Sec. 37.23 [Amended]
7. 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.''
8. Revise Sec. 37.41 to read as follows:
Sec. 37.41 Construction of transportation facilities by public
entities
(a) A public entity shall construct any new facility to be used in
providing designated public transportation services so that the
facility is readily accessible to and usable by individuals with
disabilities, including individuals who use wheelchairs. This
requirement also applies to the construction of a new station for use
in intercity or commuter rail transportation. For purposes of this
section, a facility (including a station) is ``new'' if its
construction began (i.e., issuance of a notice to proceed) after
January 25, 1992, or, in the case of intercity or commuter rail
stations, after October 7, 1991.
(b)(1) Full compliance with the requirements of this section is not
required where an entity can demonstrate that it is structurally
impracticable to meet the requirements. Full compliance will be
considered structurally impracticable only in those rare circumstances
when the unique characteristics of terrain prevent the incorporation of
accessibility features.
(2) If full compliance with this section would be structurally
impracticable, compliance with this section is required to the extent
that it is not structurally impracticable. In that case, any portion of
the facility that can be made accessible shall be made accessible to
the extent that it is not structurally impracticable.
(3) If providing accessibility in conformance with this section to
individuals with certain disabilities (e.g., those who use wheelchairs)
would be structurally impracticable, accessibility shall nonetheless be
ensured to persons with other types of disabilities (e.g., those who
use crutches or who have sight, hearing, or mental impairments) in
accordance with this section.
(c) Except as otherwise provided in this section, new commuter and
intercity rail stations shall provide level-entry boarding to all
accessible cars in each train using the station. In order to permit
level-entry boarding over the full length of the platform, stations and
cars shall be designed to minimize the vertical difference between (1)
the distance from top of rail to platform surface and (2) the distance
between top of rail and car entrance.
(d) Where it is feasible to coordinate the floor height of rail
vehicles with the platform height such that the horizontal gap is no
more than 3 inches and the vertical gap is no more than 5/8 inch,
measured when the vehicle is at rest, the station shall provide level-
entry boarding meeting these specifications to all accessible cars on
each train using the platform. In stations meeting these
specifications, no additional method of assisting boarding (e.g., use
of bridge plates) is necessary.
(e) In stations where it is not feasible to meet the 3 inch
horizontal gap and \5/8\ inch vertical gap specifications of paragraph
(c) of this section, the platform design shall be coordinated with rail
cars so that the horizontal gap between the floor of a car at rest and
the platform shall be no greater than 10 inches on tangent track and 13
inches on curves. The vertical gap between the car floor and the
boarding platform must be able to be mitigated by a bridge plate or
ramp with a 1:8 slope or less, under 50% passenger load consistent with
49 CFR 38.95(c). In such a station, level entry boarding shall be
provided to all accessible cars on each train using the platform by
using a bridge plate connecting each car and the platform.
(f) Where necessary to allow for freight movements (including
overdimensional loads) while still providing level-entry boarding as
required by paragraphs (c) through (e) of this section, commuter and
intercity stations shall use such means as gauntlet tracks, bypass
tracks, and retractable edges.
(g) Only if it is technically or operationally infeasible to
provide level-entry boarding as required by paragraphs (c) through (e)
of this section may the commuter or intercity rail
[[Page 9769]]
operator use a different means to provide accessibility. To demonstrate
infeasibility, a commuter or intercity railroad operator would have to
demonstrate that providing level entry boarding is physically
impossible or would impose an undue burden.
(1) Any such means must serve all accessible cars of the train
(e.g., if mini-high platforms are used, there must be a platform that
serves each accessible car; if car-borne or station-based lifts are
used; a lift must serve each accessible car). Such a means shall also
ensure that accessible means of entry to each car align with the
stopping point of the train.
(2) 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.
Any obstructions on a platform (stairwells, elevator shafts, seats,
etc.) shall be set at least 6 feet back from the edge of a platform.
(3) Any determination of the infeasibility of level entry boarding
under this paragraph, as well as the means chosen to provide
accessibility in the absence of level-entry boarding, must be approved
by the Federal Transit Administration (for commuter rail systems) or
the Federal Railroad Administration (for intercity rail systems). The
Federal Transit Administration and Federal Railroad Administration
shall make this determination jointly in any situation in which both a
commuter rail system and an intercity or freight railroad use the
tracks serving the platform.
(h) In the event of any inconsistency between this section and
Appendix A to this part or provisions of 49 CFR part 38, this section
shall prevail with respect to new intercity and commuter rail stations
and systems.
Sec. 37.71 [Amended]
9. In Sec. 37.71, remove paragraphs (b) through (g).
Sec. 37.77 [Amended]
10. In Sec. 37.77, remove paragraph (e).
11. Amend Sec. 37.85 by designating the existing language as
paragraph (a) and adding a new paragraph (b), to read as follows:
Sec. 37.85 Purchase or lease of new commuter rail cars.
* * * * *
(b) A new commuter rail system, in ordering cars for the system,
shall ensure that the floor height of the cars is the same as that used
in intercity rail in the part of the country in which the commuter
system is located (e.g., 48 inches above of top of rail in eastern
systems; 15-17 inches above top of rail in western systems).
Sec. 37.103 [Amended]
12. In Sec. 37.103 (b) and (c), remove the words ``or an over-the-
road bus,''.
13. Revise Sec. 37.169 to read as follows:
Sec. 37.169 Program accessibility obligation of public entities
providing designated public transportation.
(a) A public entity providing designated public transportation
shall operate each service, program, or activity so that the service,
program, or activity, when viewed in its entirety, is readily
accessible to and usable by individuals with disabilities. This
obligation includes making reasonable modifications in policies,
practices, or procedures when the modifications are necessary to avoid
discrimination on the basis of disability or to provide program
accessibility to the entity's services.
(b) Paragraph (a) of this section does not require a public entity
to take any action that it can demonstrate would result in a
fundamental alteration in the nature of a service, program, or activity
or undue financial or administrative burdens. In circumstances where
personnel of the public entity believe that an action necessary to
comply with paragraph (a) of this section would fundamentally alter the
service, program, or activity or would result in undue financial or
administrative burdens, the entity has the burden of proving that
compliance with paragraph (a) of this section would result in such
alteration or burdens. The decision that compliance would result in
such alteration or burdens must be made by the head of a public entity
or his or her designee after considering all resources available for
use in the funding and operation of the service, program, or activity,
and must be accompanied by a written statement of the reasons for
reaching that conclusion. If an action would result in such an
alteration or such burdens, a public entity shall take any other action
that would not result in such an alteration or such burdens but would
nevertheless ensure that individuals with disabilities receive the
benefits or services provided by the public entity.
(c) In choosing among available methods for meeting the
requirements of this section, a public entity shall give priority to
those methods that offer services, programs, and activities to
qualified individuals with disabilities in the most integrated setting
that is reasonably achievable.
Sec. 37.193 [Amended]
14. Remove and reserve Sec. 37.193(a)(2) and (c).
PART 38--AMERICANS WITH DISABILITIES ACT (ADA) ACCESSIBILITY
SPECIFICATIONS FOR TRANSPORTATION VEHICLES
15. 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]
16. Amend Sec. 38.91(c)(1) by removing the words ``wherever
structurally and operationally practicable'' and adding in their place
the words ``unless structurally or operationally infeasible.''
17. Amend Sec. 38.91(c)(2) by removing the words ``not
structurally or operationally practicable'' and adding, in their place,
the words ``is structurally or operationally infeasible''.
18. Revise Sec. 38.93(d) to read as follows:
Sec. 38.93 Doorways.
* * * * *
(d) Coordination with boarding platform. Cars shall be coordinated
with platforms to provide level-entry boarding as provided in 49 CFR
37.41 (c) through (h).
* * * * *
Sec. 38.95 [Amended]
19. Amend Sec. 38.95(a)(2) by removing the words ``If portable or
platform lifts, ramps, or bridge plates meeting the applicable
requirements of this section are provided on station platforms or other
stops required to be accessible, or mini-high platforms complying with
Sec. 38.93(d) are provided,'' and adding, in their place, the words
``If level-entry boarding is provided, consistent with 49 CFR 37.41 (c)
through (h),''.
Sec. 38.111 [Amended]
20. Amend Sec. 38.111(b)(1) by removing the words ``If physically
and operationally practicable'' and adding, in their place, the words
``Unless technically or operationally infeasible.''
21. Amend Sec. 38.111(b)(2) by removing the words ``not
structurally or operationally practicable'' and adding, in their place,
the words ``is technically or operationally infeasible''.
22. Revise Sec. 38.113(d) to read as follows:
Sec. 38.113 Doorways.
* * * * *
(d) Coordination with boarding platform. Cars shall be coordinated
with platforms to provide level-entry
[[Page 9770]]
boarding as provided in 49 CFR 37.41 (c) through (h).
* * * * *
Sec. 38.125 [Amended]
23. Amend Sec. 38.125(a)(2) by removing the words ``If portable or
platform lifts, ramps, or bridge plates meeting the applicable
requirements of this section are provided on station platforms or other
stops required to be accessible, or mini-high platforms complying with
Sec. 38.113(d) are provided,'' and adding, in their place, the words
``If level-entry boarding is provided, consistent with 49 CFR 37.41 (c)
through (h),''.
[FR Doc. 06-1658 Filed 2-22-06; 11:30 am]
BILLING CODE 4910-62-P