[Federal Register Volume 71, Number 38 (Monday, February 27, 2006)]
[Proposed Rules]
[Pages 9761-9770]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-1658]


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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), [email protected] (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 [email protected]; 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 [email protected].

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