[Federal Register Volume 89, Number 163 (Thursday, August 22, 2024)]
[Proposed Rules]
[Pages 67922-67928]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-18496]


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DEPARTMENT OF TRANSPORTATION

Office of the Secretary

49 CFR Part 37

[Docket No. DOT-OST-2024-0090]
RIN 2105-AF05


Transportation for Individuals With Disabilities; Adoption of 
Accessibility Standards for Pedestrian Facilities in the Public Right-
of-Way

AGENCY: Office of the Secretary (OST), U.S. Department of 
Transportation (DOT or the Department).

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: The Department of Transportation (DOT or the Department) is 
proposing to amend its rules implementing the transportation provisions 
under Title II, Part B, and Title III of the Americans with 
Disabilities Act (ADA) by adopting as regulatory accessibility 
standards the Accessibility Guidelines for Pedestrian Facilities in the 
Public Right-of-Way (PROWAG) issued by the Architectural and 
Transportation Barriers Compliance Board (Access Board) on August 8, 
2023. This proposed rule would adopt the Access Board's PROWAG into the 
Department's ADA regulations. When adopted, DOT's public right-of-way 
ADA standards will apply only to new construction and alterations of 
transit stops in the public right-of-way. For purposes of this 
rulemaking, transit stops in the public right-of-way are facilities in 
the public right-of-way used in the provision of designated or 
specified public transportation, as defined in DOT's existing ADA 
regulations.

DATES: Comments must be received on or before September 23, 2024. Late-
filed comments will be considered to the extent practicable.

ADDRESSES: You may submit comments (identified by the agency name and 
DOT Docket ID Number DOT-OST-2024-0090) by any of the following 
methods:
     Federal eRulemaking Portal: Go to https://www.regulations.gov and follow the online instructions for submitting 
comments.
     Mail: Docket Management Facility: U.S. Department of 
Transportation, 1200 New Jersey Avenue SE, West Building Ground Floor, 
Room W12-140, Washington, DC 20590-0001.
     Hand Delivery or Courier: U.S. Department of 
Transportation, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue SE, Washington, DC 20590-0001 between 9

[[Page 67923]]

a.m. and 5 p.m. ET, Monday through Friday, except Federal holidays.
     Fax: 202-493-2251.
    Instructions: You must include the agency name and docket number 
DOT-OST-2024-0090 or the Regulatory Identification Number (RIN) for the 
rulemaking at the beginning of your comment. All comments received will 
be posted without change to www.regulations.gov, including any personal 
information provided.
    Privacy Act: Anyone can search the electronic form of all comments 
received in any of our dockets by the name of the individual submitting 
the comment (or signing the comment, if submitted on behalf of an 
association, business, labor union, etc.). For information on DOT's 
compliance with the Privacy Act, please visit https://www.transportation.gov/privacy.
    Docket: For internet access to the docket to read background 
documents and comments received, go to www.regulations.gov. Background 
documents and comments received may also be viewed at the U.S. 
Department of Transportation, 1200 New Jersey Ave. SE, Docket 
Operations, M-30, West Building Ground Floor, Room W12-140, Washington, 
DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except 
Federal holidays.
    Electronic Access and Filing: A copy of the Notice of Proposed 
Rulemaking, all comments, final rule and all background material may be 
viewed online at: www.regulations.gov using the docket number listed 
above. A copy of this document will be placed in the docket and 
electronic retrieval help and guidelines are available on the website. 
The website is available 24 hours each day/365 days a year. An 
electronic copy of this document may be downloaded from the Office of 
the Federal Register's website at: www.FederalRegister.gov.

FOR FURTHER INFORMATION CONTACT: For general questions, Holly Ceasar-
Fox, Office of the General Counsel, U.S. Department of Transportation, 
(202) 366-7420, [email protected]. For legal questions related to 
PROWAG, James T. Esselman, Office of Chief Counsel, Federal Highway 
Administration, (202) 366-6181, [email protected]. For legal 
questions related to transit, Bonnie Graves, Office of Chief Counsel, 
Federal Transit Administration, (202) 366-0944, [email protected]. 
For questions related to intercity or high-speed rail, Linda Martin, 
Federal Railroad Administration, Office of Chief Counsel, 202-689-9408, 
[email protected].

SUPPLEMENTARY INFORMATION: The Americans with Disabilities Act (ADA) 
directs the U.S. Access Board (the Board) to issue minimum guidelines 
for accessible design to guide the U.S. Department of Justice and the 
U.S. Department of Transportation in the development of ADA 
accessibility standards. See 42 U.S.C. 12204(a). In 1991, the Board 
issued an initial set of ADA accessibility guidelines (ADAAG) for 
buildings and facilities on sites, defined as ``[a] parcel of land 
bounded by a property line or a designated portion of a public right-
of-way.'' See 56 FR 35408 (July 26, 1991). In 2004, the Board issued 
revisions to the ADAAG. See 69 FR 44084 (July 23, 2004). Neither 
version of the ADAAG specifically addresses the accessibility of 
facilities in the public right-of-way.
    In 2011, the Board issued proposed accessibility guidelines for 
pedestrian facilities, including transit stops, in the public right-of-
way (proposed PROWAG). 76 FR 44664 (July 26, 2011). The proposed rule 
defined ``public right-of-way'' as ``[p]ublic land or property, usually 
in interconnected corridors, that is acquired for or dedicated to 
transportation purposes.'' In 2013, the Board published a supplemental 
NPRM, to incorporate proposed accessibility guidelines for shared-use-
paths into the proposed PROWAG. 78 FR 10110 (Feb. 13, 2013). Following 
consideration of public comments, the Board issued its final rule on 
Public Rights-of-Way Accessibility Guidelines (PROWAG) on August 8, 
2023. (88 FR 53604). The final rule defines ``public right-of-way'' as 
``[p]ublic land acquired for or dedicated to transportation purposes, 
or other land where there is a legally established right for use by the 
public for transportation purposes.'' This NPRM proposes to adopt the 
PROWAG into the Department's ADA regulations without substantive 
modification.

Background

    Title II of the ADA sets forth accessibility requirements 
applicable to public entities. Under Title II, Part B, DOT is 
authorized to implement the ADA relating to nondiscrimination in the 
provision of public transportation services. See 42 U.S.C. 12149(a). 
The ADA directs DOT to adopt standards for accessible public 
transportation facilities that are ``consistent with'' final minimum 
accessibility guidelines issued by the Board. Id. at Sec.  12149(b). 
Similarly, Title III of the ADA directs DOT to adopt regulations 
implementing the transportation provisions of Title III, applicable to 
private entities that provide specified public transportation services, 
and provides that any standards adopted under such regulations must be 
``consistent with'' final minimum accessibility guidelines adopted by 
the Access Board. Id. at Sec. Sec.  12186(a), (c). These statutory 
directives require the DOT to develop and implement this proposed rule.
    Public transportation facilities subject to Title II of the ADA and 
DOT's ADA regulations at 49 CFR part 37 are those facilities used in 
the provision of designated public transportation, which is defined in 
DOT's ADA regulations as ``transportation provided by a public entity 
(other than public school transportation) by bus, rail, or other 
conveyance (other than transportation by aircraft or intercity or 
commuter rail transportation) that provides the general public with 
general or special service, including charter service, on a regular and 
continuing basis.'' 49 CFR 37.3. These facilities include bus and other 
transit stops in the public right-of-way operated by public transit 
agencies.
    Public transportation facilities subject to Title III of the ADA 
and DOT's ADA regulations at 49 CFR part 37 include those facilities 
located in the public right-of-way used in the provision of specified 
public transportation, which is defined in DOT's ADA regulations as 
``transportation by bus, rail, or any other conveyance (other than 
aircraft) provided by a private entity to the general public, with 
general or special service (including charter service) on a regular and 
continuing basis.'' 49 CFR 37.3. These services include those provided 
by tour and charter buses, taxis and limousines, and hotel shuttles 
operated by private entities.
    For purposes of this rule, DOT considers facilities in the public 
right-of-way used in the provision of designated or specified public 
transportation to be transit stops. The Access Board's PROWAG does not 
use the terms ``designated public transportation'' or ``specified 
public transportation'' in setting forth accessibility guidelines 
applicable to transit stops. The PROWAG defines ``transit stop'' as: 
``An area that is designated for passengers to board or alight from 
buses, rail cars, and other transportation vehicles that operate on a 
fixed route or scheduled route, including bus stops and boarding 
platforms. This definition does not include intercity rail except where 
a stop is located in the public right-of-way.'' PROWAG R104. DOT's 
existing ADA regulations do not define ``transit stop.'' To bridge the 
Access Board's PROWAG with DOT's existing ADA regulations applicable to 
public transportation facilities, DOT is proposing to add a definition 
of ``transit stop'' to its regulations at 49 CFR part

[[Page 67924]]

37 that adopts the PROWAG definition but clarifies that facilities in 
the public right-of-way used in the provision of designated or 
specified transportation are transit stops. Unless otherwise stated, 
DOT's use of the term ``transit stop'' in this preamble refers to this 
proposed definition.
    In order to avoid duplication, since the entire text of the PROWAG 
is available in materials published by the Access Board, the Department 
is proposing to adopt the PROWAG into Section 37.9 of the Department's 
ADA regulations at 49 CFR part 37 by cross-reference to 36 CFR part 
1190. If adopted as proposed, DOT's public right-of-way ADA standards 
would apply only to new construction and alterations of transit stops 
in the public right-of-way. The Department may pursue a separate 
rulemaking in the future to address application of its public right-of-
way ADA standards to existing transit stops not otherwise undergoing 
alterations and to adopt its public right-of-way ADA standards into 
DOT's regulations implementing Section 504 of the Rehabilitation Act of 
1973 at 49 CFR part 27.
    This proposed rule would adopt the PROWAG issued by the Access 
Board into DOT's ADA regulations at 49 CFR part 37. Although DOT 
proposes to adopt the entirety of the PROWAG into its ADA regulations, 
DOT's independent enforcement authority under the ADA extends only to 
the accessibility of public transportation facilities. See 42 U.S.C. 
12149(a), 12186(a), (c). As a result, DOT would enforce only those 
provisions of DOT's public right-of-way ADA standards applicable to new 
construction and alterations of transit stops in the public right-of-
way. As set forth in PROWAG R309, elements required to be accessible at 
a transit stop in the public right-of-way include the boarding and 
alighting area at a sidewalk or street-level transit stop or the 
boarding platform, pedestrian access routes (PARs) that connect altered 
boarding and alighting areas or altered boarding platforms with 
existing pedestrian circulation paths, and, if provided, transit 
shelters and PARs connecting transit shelters with boarding and 
alighting areas or boarding platforms they serve. The PROWAG contains 
other provisions applicable to transit stops in the public right-of-way 
that would be subject to DOT enforcement under this rule: fare vending 
machines (R210); operable parts of other fixed elements (R210); 
detectable warnings for boarding platforms (R205.5) and sidewalk and 
street-level rail boarding and alighting areas (R205.6); pedestrian 
signs (R208); connections to accessible facilities subject to the ADA 
for newly constructed transit stops (R203.2.1); alternate transit stops 
(R204.2); and benches (R209.6.1).
    The term ``transit stop'' is not intended to include other separate 
elements of the public right-of-way, such as on-street parking spaces, 
crosswalks, or sidewalks (with the exception of the PAR connections 
mentioned above: PARs between transit stops and transit shelters, PARs 
between altered boarding and alighting areas or altered boarding 
platforms and existing pedestrian circulation paths, and PARs between 
newly constructed transit stops and accessible elements, spaces, and 
pedestrian facilities required to be accessible). Such other elements 
in the public right-of-way fall under the jurisdiction of the 
Department of Justice under Title II, Part A, of the ADA.
    We request comments on whether the Department's accessibility 
standards should differ from the Access Board's PROWAG, noting that the 
Department's standards must be ``consistent with'' the Access Board's 
PROWAG. That is, the Department may not adopt standards that provide 
less accessibility for individuals with disabilities than what is 
provided in the PROWAG. The Department may adopt modifications, 
however, that provide greater accessibility than the PROWAG or that 
clarify application of certain PROWAG provisions.
    Specifically, the Department is considering whether it should add 
restrictions on the location of transit stop boarding and alighting 
areas to provide greater accessibility. The Department is concerned 
that certain transit stop designs locate the boarding and alighting 
area so that it coincides with vehicular lanes, including bicycle 
facilities, which may impede accessibility. An example is where a 
bicycle lane is located between the bus stop and the sidewalk, and the 
boarding and alighting area of the bus stop extends into the bicycle 
lane.
    The Department has identified various potential accessibility 
concerns regarding boarding and alighting areas that are co-located 
with a vehicular way. Co-location of the boarding area with a vehicular 
lane, including a bicycle lane, may put a transit user with 
disabilities at risk of being struck while waiting to board. 
Individuals who are blind or have low vision or who use wheelchairs 
often wait for transit vehicles within the portion of the boarding and 
alighting area closest to the curb to ensure that the driver sees them. 
Where the boarding and alighting area overlaps a bicycle lane or other 
vehicular lane, these individuals may be at greater risk of being 
struck. When alighting from the transit vehicle, passengers who are 
blind or have low vision may be unable to detect a motorist or 
bicyclist approaching, and the motorist or bicyclist may not see that a 
passenger is about to alight the transit vehicle, particularly a 
passenger in a wheelchair who is lower to the ground and thus less 
visible. Pedestrians with mobility issues may have difficulty moving 
out of the way quickly enough to avoid injury. In addition, if the 
transit vehicle needs to deploy a ramp so a passenger using a 
wheelchair can board or alight, the ramp may conflict with vehicular, 
including bicycle, traffic.
    The PROWAG transit stop provisions at R309.1 are silent on whether 
the co-location of boarding areas and vehicular lanes, including 
bicycle facilities, is permitted. The Department seeks comment on 
whether allowing boarding and alighting areas to overlap vehicular 
lanes presents accessibility concerns, and whether it should consider 
adding a provision to R309.1 when it adopts the PROWAG into its 
standards restricting such co-location. The Department is interested in 
whether there are solutions short of prohibiting co-location that would 
address accessibility concerns, such as alternative designs that 
prevent vehicular passage when riders are boarding or alighting from a 
transit vehicle. The Department also seeks any data, research, or 
studies concerning this issue, as well as comment on costs and benefits 
of approaches to the co-location of boarding and alighting areas with 
vehicular lanes, including bicycle lanes, that would ensure 
accessibility. The Department's Draft Regulatory Impact Assessment 
identifies preliminary unit costs for elements in the public right-of-
way that may be affected if modifications to R309.1 with respect to co-
location of boarding areas and vehicular lanes are adopted in the 
Department's final rule.
    Because the Department, as a member of the Access Board, has 
already had the opportunity to review comments provided to the Access 
Board during its development of the PROWAG, it is not necessary to 
resubmit any comments to the Department that were already provided to 
the Access Board during its rulemaking process.

Amendments to 49 CFR Part 37

    The Department proposes to codify the PROWAG by revising our 
regulations at title 49, Code of Federal Regulations, part 37.
    We propose to keep the existing regulatory provisions at section 
37.9, but to create a paragraph (a) for those

[[Page 67925]]

provisions with the paragraph heading of ``Transportation facilities 
other than transit stops in the public right-of-way.'' This revision 
would clarify that the provisions under section 37.9(a) apply to public 
transportation facilities that are buildings or located on sites, 
including buildings or sites located in the public right-of-way, such 
as transit and rail stations. As is currently the case under existing 
section 37.9, transportation facilities subject to new section 37.9(a) 
would be considered readily accessible to and usable by individuals 
with disabilities if they meet the requirements of 49 CFR part 37 and 
meet the requirements of the Access Board's 2004 ADA Accessibility 
Guidelines (2004 ADAAG), set forth in Appendices B and D of 36 CFR 
1191, as amended by 49 CFR part 37, Appendix A. This is consistent with 
PROWAG provision R201.3.\1\ The new section 37.9(a) would not apply to 
pedestrian facilities in the public right-of-way, including transit 
stops.
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    \1\ PROWAG R201.3 provides: ``R201.3 Buildings, Structures, and 
Elements. Buildings, structures, and elements in the public right-
of-way that are not covered by the requirements in these guidelines 
shall comply with the applicable requirements in 36 CFR part 1191 
(ADA & ABA Accessibility Guidelines). Examples include, but are not 
limited to, buildings, structures, and elements at safety rest areas 
or park and ride lots, temporary performance stages and reviewing 
stands.''
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    The Department also proposes to create a new paragraph at section 
37.9(b), ``Transportation facilities (transit stops) in the public 
right-of-way,'' that would adopt the PROWAG as regulatory standards for 
new construction or alterations of transit stops located in the public 
right-of-way by cross-reference to the Access Board's codification of 
the PROWAG in the Appendix at 36 CFR part 1190. The Department 
proposes, as well, to add definitions of ``transit stop,'' ``public 
right-of-way,'' and ``alteration of a transit stop'' to 49 CFR 37.3. 
The proposed definition of ``transit stop'' mirrors the definition of 
``transit stop'' in the PROWAG but clarifies that a facility used in 
the provision of designated or specified public transportation in the 
public right-of-way is a transit stop. The proposed definition of 
``public right-of-way'' mirrors the definition in the PROWAG. DOT 
proposes to add a definition of ``alteration of a transit stop'' to 
distinguish such alterations, which would be subject to DOT's public 
rights-of-way standards adopted under this rule, from the existing 
definition of ``alteration'' in DOT's ADA regulation, which are subject 
to accessibility standards applicable to buildings and sites (the 2004 
ADAAG adopted by DOT, as modified by Appendix A of 49 CFR part 37).
    One of the issues an agency always faces when adopting or updating 
standards is how to handle projects that are in progress at the time 
the new standards come into effect. The Department proposes that the 
clearest way of handling this issue is to provide in section 37.9(b)(2) 
that a transit stop project located in the public right-of-way on which 
construction has begun, or all approvals for final design have been 
received, before the effective date of the final rule are not required 
to be consistent with the requirements set forth in the Appendix to 36 
CFR part 1190, but are otherwise required to be readily accessible to 
and usable by individuals with disabilities. This approach would 
provide needed clarity to regulated entities, but the Department does 
not expect significant impacts on accessibility. Even in the absence of 
enforceable standards, public entities are prohibited from 
discriminating against individuals with disabilities in the provision 
of designated or specified public transportation. See 49 CFR 37.5(a). 
Public entities retain flexibility in how to ensure that their 
facilities are accessible, but, as documented in the accompanying Draft 
Regulatory Impact Assessment, most public entities are already 
designing and building transit stops in the public right-of-way in line 
with guidelines that are similar to those in the PROWAG. The entity or 
person constructing or altering a transit facility could also choose to 
comply with the new proposed standards in such a case.
    The Department is proposing an effective date of the final rule of 
30 days after publication of its final rule. Given that the public and 
regulated entities have been aware of the proposed PROWAG's provisions 
related to transit stops since 2011, which are generally unchanged in 
the PROWAG, and that many entities have relied on the Department of 
Justice's similar 2010 ADA Standards for boarding and alighting areas 
or boarding platforms as references for transit stops in the public 
right-of-way, we do not anticipate entities requiring additional time 
to become familiar with the Department's ADA public right-of-way 
standards before compliance is required for new construction and 
alterations. DOT seeks comment on whether the proposed compliance date 
is appropriate.

Rulemaking Analyses and Notices

Executive Order 12866 (Regulatory Planning and Review), Executive Order 
13563 (Improving Regulation and Regulatory Review), and DOT Regulatory 
Policies and Procedures

    The Office of Management and Budget (OMB) has determined that this 
rulemaking is not a significant regulatory action within the meaning of 
E.O. 12866, as amended by E.O. 14094 (``Modernizing Regulatory 
Review''). The rule will not have an annual effect on the economy of 
$200 million or more. The rule will not adversely affect in a material 
way the economy, any sector of the economy, productivity, competition, 
jobs, the environment, public health or safety, or State, local, 
territorial, or tribal governments or communities. In addition, the 
changes would not interfere with any action taken or planned by another 
agency and would not materially alter the budgetary impact of any 
entitlements, grants, user fees, or loan programs.
    DOT estimates that this rulemaking would have minimal 
implementation costs, due to the close alignment between the 
requirements of the rule and existing guidance and industry practices 
for transit stops in the public right-of-way. This is presented in 
further detail in the accompanying Draft Regulatory Impact Assessment 
(DRIA) document.
    The rule benefits pedestrians with disabilities by establishing a 
clear set of accessible design and construction standards for transit 
stops in the public right-of-way with which public entities would be 
required to comply. The rule would ensure a more uniformly accessible 
public transportation system, which facilitates independent living and 
economic self-sufficiency. Other pedestrians may experience ancillary 
benefits as well if facilities are easier to use. These benefits are 
unlikely to be quantified or monetized. The full draft RIA is available 
in the docket.

Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (Pub. L. 96-354, 
5 U.S.C. 601-612), DOT has reviewed the analysis conducted by the 
Access Board and published with the final rule (88 FR 53604, August 8, 
2023), and evaluated the effects of this proposed rule on small 
entities and has determined that it is not anticipated to have a 
significant economic impact on a substantial number of small entities. 
DOT estimates that this rulemaking would have minimal implementation 
costs, due to the close alignment between the requirements of the rule 
and existing

[[Page 67926]]

guidance and industry practices for transit stops in the public right-
of-way. In addition, many small governmental jurisdictions are located 
in rural areas and do not have transit facilities that would be 
impacted by the proposed USDOT rulemaking. This is presented in further 
detail in the accompanying Draft Regulatory Impact Assessment (DRIA) 
document. Therefore, the Department certifies that the proposed rule 
will not have a significant economic impact on a substantial number of 
small entities.

Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act does not apply to proposed or 
final rules that enforce constitutional rights of individuals or 
enforce statutory rights that prohibit discrimination on the basis of 
race, color, sex, national origin, age, handicap, or disability. Since 
the DOT's proposed adoption of the 2023 Accessibility Guidelines for 
Pedestrian Facilities in the Public Right-of-Way Guidelines is done 
pursuant to the ADA, which prohibits discrimination on the basis of 
disability, an assessment of the rule's effect on state, local, and 
tribal governments, and the private sector is not required.

Executive Order 13132 (Federalism Assessment)

    DOT's proposed rule would be applicable to public entities, 
including state and local governments, but any federalism implications 
are not significant. Public entities have been subject to the ADA since 
1991, and the many public entities that receive Federal financial 
assistance have also been required to comply with the requirements of 
Section 504 of the Rehabilitation Act. Both statutes have required 
accessibility of transit stops, even in the absence of enforceable 
standards. Many public entities, in fact, have independently applied 
the proposed 2011 PROWAG or similar transit stop provisions in DOT's 
2006 ADA Standards or DOJ's 2010 ADA Standards. Thus, the adoption of 
PROWAG into DOT's ADA regulations, enforceable only with respect to 
transit stops, would not significantly alter existing practice. In 
addition, public entities previously had the opportunity to provide 
input and feedback during the development of the Access Board's PROWAG 
rule. As a result, DOT has determined that this proposed rule would not 
have sufficient federalism implications to warrant the preparation of a 
federalism assessment. This NPRM will not have a substantial effect on 
the States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among 
various levels of government.

Paperwork Reduction Act of 1995

    Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et 
seq.), Federal agencies must obtain approval from the Office of 
Management and Budget (OMB) for each collection of information they 
conduct, sponsor, or require through regulations. The DOT has 
determined that this proposal does not contain collection of 
information requirements for the purposes of the PRA.

National Environmental Policy Act

    The Department has analyzed the environmental impacts of this 
proposed action pursuant to the National Environmental Policy Act of 
1969 (NEPA) (42 U.S.C. 4321 et seq.) and has determined that it is 
categorically excluded pursuant to DOT Order 5610.1C, Procedures for 
Considering Environmental Impacts (44 FR 56420, Oct. 1, 1979). 
Categorical exclusions are actions identified in an agency's NEPA 
implementing procedures that do not normally have a significant impact 
on the environment and therefore do not require either an environmental 
assessment (EA) or environmental impact statement (EIS). See 40 CFR 
1501.4(a). Paragraph 4(c)(5) of DOT Order 5610.1C incorporates by 
reference the categorical exclusions for all DOT Operating 
Administrations. This action is covered by the categorical exclusion 
listed in the Federal Transit Administration's implementing procedures, 
``[p]lanning and administrative activities that do not involve or lead 
directly to construction, such as: . . . promulgation of rules, 
regulations, directives . . .'' 23 CFR 771.118(c)(4) and Federal 
Highway Administration's implementing procedures, ``[p]romulgation of 
rules, regulations, and directives.'' 23 CFR 771.117(c)(20).
    In analyzing the applicability of a categorical exclusion, the 
agency must also consider whether extraordinary circumstances are 
present that would warrant the preparation of an EA or EIS. 40 CFR 
1501.4(b). This rulemaking concerns civil rights protection for 
individuals with disabilities. The Department does not anticipate any 
environmental impacts, and there are no extraordinary circumstances 
present in connection with this rulemaking. The Department welcomes 
public comment on potential environmental impacts, including climate 
change impacts, that may result from this rulemaking.

Executive Order 13175 (Tribal Consultation)

    DOT has analyzed this proposed rule in accordance with the 
principles and criteria contained in E.O. 13175, ``Consultation and 
Coordination with Indian Tribal Governments.'' The proposed rule would 
establish a regulation on the accessibility of transit stops in the 
public right-of-way.
    This measure applies to public entities, as defined under the ADA, 
which does not include tribal governments or other tribal entities, and 
it would not have substantial direct effects on one or more Indian 
Tribes, would not impose substantial direct compliance costs on Indian 
Tribal governments, and would not preempt Tribal laws. Accordingly, the 
funding and consultation requirements of E.O. 13175 do not apply and a 
Tribal summary impact statement is not required.

Executive Order 12898 (Environmental Justice)

    E.O. 12898 requires that each Federal agency make achieving 
environmental justice part of its mission by identifying and 
addressing, as appropriate, disproportionately high and adverse human 
health or environmental effects of its programs, policies, and 
activities on minorities and low-income populations. The DOT has 
determined that this proposed rule does not raise any environmental 
justice issues.

Regulation Identifier Number

    A RIN is assigned to each regulatory action listed in the Unified 
Agenda of Federal Regulations. The Regulatory Information Service 
Center publishes the Unified Agenda in April and October of each year. 
The RIN contained in the heading of this document can be used to cross 
reference this action with the Unified Agenda.

List of Subjects in 49 CFR Part 37

    Civil rights, Individuals with disabilities, Transportation.

    Issued in Washington, DC, under authority delegated in 49 CFR 
1.27(a).
Subash Iyer,
Acting General Counsel, U.S. Department of Transportation.

    For the reasons set forth in the preamble, DOT proposes to amend 
title 49, Code of Federal Regulations, part 37, as follows:

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

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


[[Page 67927]]


0
2. Amend Sec.  37.3 by adding, in alphabetical order, the definitions 
of ``Alteration of a transit stop'', ``Public right-of-way'', and 
``Transit stop''.


Sec.  37.3  Definitions.

* * * * *
    Alteration of a transit stop means a change to or an addition of a 
transit stop in an existing, developed public right-of-way that affects 
or could affect pedestrian access, circulation, or usability.
* * * * *
    Public right-of-way means public land acquired for or dedicated to 
transportation purposes, or other land where there is a legally 
established right for use by the public for transportation purposes.
* * * * *
    Transit stop means an area that is designated for passengers to 
board or alight from buses, rail cars, and other transportation 
vehicles that operate on a fixed route or scheduled route, including 
bus stops and boarding platforms. Transit stops include, if provided, 
transit shelters and pedestrian circulation connections between transit 
shelters and bus boarding and alighting areas or boarding platforms 
they serve. This definition does not include intercity rail except 
where a stop is located in the public right-of-way. A facility used in 
the provision of designated or specified public transportation in the 
public right-of-way is a transit stop.
* * * * *
0
3. Revise Sec.  37.9 to read as follows:


Sec.  37.9  Standards for accessible transportation facilities.

    (a) Transportation facilities other than transit stops in the 
public right-of-way.
    (1) For purposes of this part, a transportation facility shall be 
considered to be readily accessible to and usable by individuals with 
disabilities if it meets the requirements of this part and the 
requirements set forth in Appendices B and D to 36 CFR part 1191, which 
apply to buildings and facilities covered by the Americans with 
Disabilities Act, as modified by Appendix A to this part.
    (2) Facility alterations begun before January 26, 1992, in a good 
faith effort to make a facility accessible to individuals with 
disabilities may be used to meet the key station requirements set forth 
in Sec. Sec.  37.47 and 37.51 of this part, even if these alterations 
are not consistent with the requirements set forth in Appendices B and 
D to 36 CFR part 1191 and Appendix A to this part, if the modifications 
complied with the Uniform Federal Accessibility Standards (UFAS) or 
ANSI A117.1(1980) (American National Standards Specification for Making 
Buildings and Facilities Accessible to and Usable by the Physically 
Handicapped). This paragraph applies only to alterations of individual 
elements and spaces and only to the extent that provisions covering 
those elements or spaces are contained in UFAS or ANSI A117.1, as 
applicable.
    (3) (i) New construction or alterations of buildings or facilities 
on which construction has begun, or all approvals for final design have 
been received, before November 29, 2006, are not required to be 
consistent with the requirements set forth in Appendices B and D to 36 
CFR part 1191 and Appendix A to this part, if the construction or 
alterations comply with the former Appendix A to this part, as codified 
in the October 1, 2006, edition of the Code of Federal Regulations.
    (ii) Existing buildings and facilities that are not altered after 
November 29, 2006, and which comply with the former Appendix A to this 
part, are not required to be retrofitted to comply with the 
requirements set forth in Appendices B and D to 36 CFR part 1191 and 
Appendix A to this part.
    (4) (i) For purposes of implementing the equivalent facilitation 
provision in ADA Chapter 1, Section 103, of Appendix B to 36 CFR part 
1191, the following parties may submit to the Administrator of the 
applicable operating administration a request for a determination of 
equivalent facilitation:
    (A) (1) A public or private entity that provides transportation 
facilities subject to the provisions of subpart C of this part, or 
other appropriate party with the concurrence of the Administrator.
    (2) With respect to airport facilities, an entity that is an 
airport operator subject to the requirements of 49 CFR part 27 or 
regulations implementing the Americans with Disabilities Act, an air 
carrier subject to the requirements of 14 CFR part 382, or other 
appropriate party with the concurrence of the Administrator.
    (B) The manufacturer of a product or accessibility feature to be 
used in a transportation facility or facilities.
    (ii) The requesting party shall provide the following information 
with its request:
    (A) Entity name, address, contact person and telephone;
    (B) Specific provision(s) of Appendices B and D to 36 CFR part 1191 
or Appendix A to this part concerning which the entity is seeking a 
determination of equivalent facilitation.
    (C) [Reserved]
    (D) Alternative method of compliance, with demonstration of how the 
alternative meets or exceeds the level of accessibility or usability 
provided in Appendices B and D to 36 CFR part 1191 or Appendix A to 
this part; and
    (E) Documentation of the public participation used in developing an 
alternative method of compliance.
    (iii) In the case of a request by a public entity that provides 
transportation facilities (including an airport operator), or a request 
by an air carrier with respect to airport facilities, the required 
public participation shall include the following:
    (A) The entity shall contact individuals with disabilities and 
groups representing them in the community. Consultation with these 
individuals and groups shall take place at all stages of the 
development of the request for equivalent facilitation. All documents 
and other information concerning the request shall be available, upon 
request, to Department of Transportation officials and members of the 
public.
    (B) The entity shall make its proposed request available for public 
comment before the request is made final or transmitted to DOT. In 
making the request available for public review, the entity shall ensure 
that it is available, upon request, in accessible formats.
    (C) The entity shall sponsor at least one public hearing on the 
request and shall provide adequate notice of the hearing, including 
advertisement in appropriate media, such as newspapers of general and 
special interest circulation and radio announcements.
    (iv) In the case of a request by a manufacturer or a private entity 
other than an air carrier, the manufacturer or private entity shall 
consult, in person, in writing, or by other appropriate means, with 
representatives of national and local organizations representing people 
with those disabilities who would be affected by the request.
    (v) A determination of compliance will be made by the Administrator 
of the concerned operating administration on a case-by-case basis, with 
the concurrence of the Assistant Secretary for Transportation Policy.
    (vi) (A) Determinations of equivalent facilitation are made only 
with respect to transportation facilities, and pertain only to the 
specific situation concerning which the determination is made. 
Provided, however, that with respect to a product or accessibility 
feature that the Administrator determines can provide an equivalent 
facilitation in a class of situations, the Administrator may make an 
equivalent facilitation

[[Page 67928]]

determination applying to that class of situations.
    (B) Entities shall not cite these determinations as indicating that 
a product or method constitutes equivalent facilitation in situations, 
or classes of situations, other than those to which the determinations 
specifically pertain.
    (C) Entities shall not claim that a determination of equivalent 
facilitation indicates approval or endorsement of any product or method 
by the Federal government, the Department of Transportation, or any of 
its operating administrations.
    (b) Transportation facilities (transit stops) in the public right-
of-way
    (1) Except as set forth in paragraph (2), if new construction or 
alterations of a transit stop located in the public right-of-way 
commence after [Effective Date of Rule], the new construction or 
alterations of a transit stop shall comply with the requirements set 
forth in the Appendix to 36 CFR part 1190, which apply to pedestrian 
facilities located in the public right-of-way covered by the Americans 
with Disabilities Act.
    (2) New construction or alterations of transit stops located in the 
public right-of-way on which construction has begun, or all approvals 
for final design have been received, before [Effective Date of Rule], 
are not required to be consistent with the requirements set forth in 
the Appendix to 36 CFR part 1190, but are otherwise required to be 
readily accessible to and usable by individuals with disabilities.
    (3) (i) For purposes of implementing the equivalent facilitation 
provision in Chapter 1, Section R102.1, of the Appendix to 36 CFR part 
1190, the following parties may submit to the Administrator of the 
applicable operating administration a request for a determination of 
equivalent facilitation:
    (A) A public or private entity that provides transit stops in the 
public right-of-way subject to the provisions of subpart C of this 
part, or other appropriate party with the concurrence of the 
Administrator.
    (B) The manufacturer of a product or accessibility feature to be 
used in a transit stop in the public right-of-way.
    (ii) The requesting party shall provide the following information 
with its request:
    (A) Entity name, address, contact person and telephone;
    (B) Specific provision(s) of the Appendix to 36 CFR part 1190 
concerning which the entity is seeking a determination of equivalent 
facilitation.
    (C) Alternative method of compliance, with demonstration of how the 
alternative meets or exceeds the level of accessibility or usability 
provided in the Appendix to 36 CFR part 1190; and
    (D) Documentation of the public participation used in developing an 
alternative method of compliance.
    (iii) In the case of a request by a public entity that provides 
transit stops in the public right-of-way, the required public 
participation shall include the following:
    (A) The entity shall contact individuals with disabilities and 
groups representing them in the community. Consultation with these 
individuals and groups shall take place at all stages of the 
development of the request for equivalent facilitation. All documents 
and other information concerning the request shall be available, upon 
request, to Department of Transportation officials and members of the 
public.
    (B) The entity shall make its proposed request available for public 
comment before the request is made final or transmitted to DOT. In 
making the request available for public review, the entity shall ensure 
that it is available, upon request, in accessible formats.
    (C) The entity shall sponsor at least one public hearing on the 
request and shall provide adequate notice of the hearing, including 
advertisement in appropriate media, such as newspapers of general and 
special interest circulation and radio announcements.
    (iv) In the case of a request by a manufacturer or a private 
entity, the manufacturer or private entity shall consult, in person, in 
writing, or by other appropriate means, with representatives of 
national and local organizations representing people with those 
disabilities who would be affected by the request.
    (v) A determination of compliance will be made by the Administrator 
of the concerned operating administration on a case-by-case basis, with 
the concurrence of the Assistant Secretary for Transportation Policy.
    (vi) (A) Determinations of equivalent facilitation are made only 
with respect to transit stops in the public right-of-way, and pertain 
only to the specific situation concerning which the determination is 
made. Provided, however, that with respect to a product or 
accessibility feature that the Administrator determines can provide an 
equivalent facilitation in a class of situations, the Administrator may 
make an equivalent facilitation determination applying to that class of 
situations.
    (B) Entities shall not cite these determinations as indicating that 
a product or method constitutes equivalent facilitation in situations, 
or classes of situations, other than those to which the determinations 
specifically pertain.
    (C) Entities shall not claim that a determination of equivalent 
facilitation indicates approval or endorsement of any product or method 
by the Federal government, the Department of Transportation, or any of 
its operating administrations.

[FR Doc. 2024-18496 Filed 8-21-24; 8:45 am]
BILLING CODE 4910-9X-P