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Transportation for Individuals With Disabilities; Adoption of Accessibility Standards for Pedestrian Facilities in the Public Right-of-Way Publication: Federal Register Department: Transportation Byline: Subash Iyer Date: 22 August 2024 Subjects: American Government  , Safety
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[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, holly.ceasarfox@dot.gov. For legal questions related to
PROWAG, James T. Esselman, Office of Chief Counsel, Federal Highway
Administration, (202) 366-6181, james.esselman@dot.gov. For legal
questions related to transit, Bonnie Graves, Office of Chief Counsel,
Federal Transit Administration, (202) 366-0944, bonnie.graves@dot.gov.
For questions related to intercity or high-speed rail, Linda Martin,
Federal Railroad Administration, Office of Chief Counsel, 202-689-9408,
Linda.Martin@dot.gov.
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]
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