49 CFR Parts 37 and 38 -- Transportation for Individuals With Disabilities at Intercity, Commuter, and High Speed Passenger Railroad Station Platforms; Miscellaneous Amendments, Preamble

DOT Response

If a railroad provides to people who cannot climb steps access to only one car in a multi-car train, it is not providing service in an integrated setting. Such service is segregated, not integrated. If Person A is a wheelchair user and Person B is ambulatory, denying A the opportunity to enter any accessible car of a train that B can enter is discriminatory and contrary to the requirements of disability access law.

Commenters' arguments that the ADA permits service to passengers with disabilities to be limited to a single car are not persuasive. At the time the ADA was enacted, Congress was aware that some railroads had legacy equipment that was inaccessible. While Congress required railroads to acquire only accessible new cars after the ADA went into effect, Congress did not wish to make railroads retrofit or replace large numbers of old, inaccessible cars. Consequently, Congress required that, by July 26, 1995, railroads provide at least one accessible car per train, while not having to make all existing cars accessible or obtain accessible replacement cars by that date. This was solely an interim equipment requirement, which virtually all U.S. intercity and commuter railroads have met. Meeting this equipment requirement does not negate the obligations of railroads, under the ADA and section 504, to provide service in a nondiscriminatory and integrated manner.

In large part because of the ADA requirement that all new cars meet these accessibility requirements (i.e., compliance with the requirements of 49 CFR part 38, the Department's accessibility standards for transportation vehicles), a significant portion of cars on American railroads are now accessible. The point of the requirement to obtain accessible new rail cars is to make sure that ultimately each car on a train is accessible to and usable by people with disabilities, including those who cannot climb steps. For a railroad to say to a passenger with a disability, in effect, that “we have a car that meets accessibility requirements for use by passengers with disabilities but we will not provide any way of letting you use the accessible car” would undermine the purpose of the requirement to obtain accessible cars.

Like the NPRM, the final rule requires operators to provide access only to accessible, available cars that people with disabilities are trying to access at a given station. If a train has eight accessible cars, and wheelchair users want to enter only cars 2 and 7 (see discussion of passenger notification below), then railroad personnel need to deploy lifts or bridge plates only at cars 2 and 7, not at the other cars. Concerns expressed in comments about the number of new personnel that would have to be hired appear to have been based on misunderstandings of this point. Similarly, the rule requires operators to provide access only to available cars at a station. If a train has eight accessible cars, but the platform only serves cars 1 through 6, then railroad personnel need to deploy lifts or bridge plates only at cars that people with disabilities are trying to access and that are available to all passengers. We would also point out that wheelchair positions on rail passenger cars are intended to serve wheelchair users, and railroad operators should take steps to ensure that these spaces are available for wheelchair users and not for other uses. For example, it would be contrary to this rule for a wheelchair user to be told that he or she could not use car 7 because the wheelchair spaces were filled with other passengers' luggage from a previous stop. We would also point out that railroads are not required to retrofit train cars, since railroads can choose among a variety of approaches to meet the performance standard.

In order to ensure that access was provided, passengers would have to notify railroad personnel. For example, if a passenger at a station wanted to use a station-based lift to access car 6, the passenger would request the use of car 6 and railroad personnel would deploy the lift at that car. Likewise, at a station using a mini-high platform, a passenger on this platform would inform train personnel that he or she wanted to enter car 5, whereupon the train would pull forward so that car 5 was opposite the mini-high platform. We contemplate that these requests would be made when the train arrives, and railroads could not insist on advance notice (e.g., the railroad could not require a passenger to call a certain time in advance to make a “reservation” to use a lift to get on a particular car). As part of its submission to FTA or FRA, the railroad would describe the procedure it would use to receive and fulfill these requests.

The NPRM did not propose to require any stations to be retrofitted for level-entry boarding. The proposal concerning level-entry boarding was always forward-looking, intended to apply to stations constructed or altered after the rule went into effect. The final rule makes this point explicit. In addition, the NPRM did not propose to require level-entry boarding as a solution in every instance, permitting other solutions where level-entry boarding was infeasible. Consequently, comments projecting enormous costs based on the assumption that the NPRM proposed requiring extensive retrofitting of existing stations to provide level-entry boarding everywhere were based on a misunderstanding of the NPRM. Like the NPRM, the final rule applies to new construction and alterations and does not require retrofitting.

Many of the comments opposing level-entry boarding asserted that higher platforms would interfere with actual or potential freight movements. The FRA has reviewed these claims and has determined that while there could be some risk to a railroad employee riding on the bottom step of some freight equipment with platforms at the 15-inch level, this risk is normally addressed in the freight railroad's operating rules and would be taken into consideration during the review conducted by FRA for each new or altered platform. Having examined the dimensions of even the overwidth freight cars used to transport loads such as defense cargoes and airplane components, FRA found that there are no freight cars that would conflict with level-entry boarding platforms at 15-17 inches ATR. In the Northeast Corridor, where long-existing platforms are often 48 inches ATR, solutions to overdimensional freight movements on shared track that passes through stations are already in place.

Nevertheless, it is clear from comments to the docket of this rulemaking that freight railroads are adamant that they will not permit passenger railroads to construct platforms more than 8 inches ATR adjacent to tracks they own and control and are shared with passenger railroads. The Department does not currently have legal tools to overcome this refusal. In particular, section 37.57 of the Department's ADA regulation, “Required cooperation,” applies to owners or persons in control of a station, not to owners or persons in control of track that passes through a station.

For this reason, and to avoid the potentially high costs of building gauntlet or bypass tracks at existing stations being altered, the Department is modifying the NPRM's proposal. The final rule will establish a performance standard: individuals with disabilities, including individuals who use wheelchairs, must have access to all accessible cars in each train using the station. This performance standard will apply at stations where construction or alteration of platforms begins 135 days or more after the rule goes into effect. The requirement is prospective, and section 37.42 does not require retrofit of existing stations (though compliance with existing disability nondiscrimination requirements not being altered in this final rule is still required). To meet this performance standard on lines or systems where track passing through stations and adjacent to platforms is shared with freight railroad traffic, passenger railroads that do not choose to provide level-entry boarding may, after obtaining FRA and/or FTA approval, use car-borne lifts, mini-high platforms (making multiple stops where necessary to accommodate passengers wishing to use different cars of the train), or portable station-based lifts.

On commuter, intercity, or high-speed rail lines or systems in which track passing through stations and adjacent to platforms is not shared with existing freight rail operations, the performance standard must be met by providing level-entry boarding to all accessible cars in each train that serves new or altered stations on the line or system. For example, if a new commuter or high-speed rail line or system is being built, and the track adjacent to platforms is not shared with freight traffic (e.g., it is a passenger rail-only system, or a bypass or gauntlet track exists for freight traffic), then the stations would have to provide level-entry boarding. Other options would not be permitted.

If a platform being constructed or altered is not adjacent to track used for freight, but the track and platform are used by more than one passenger railroad (e.g., Amtrak and a commuter railroad), the possibility of the platform serving cars with different door heights exists. In this situation, the level-entry boarding requirement continues to exist. Generally, the platform should be level with respect to the system that has the lower boarding height. This is because it is not good safety practice to make passengers step down (or be lifted down or use ramps to get down) to board a train. For example, if Amtrak operates through a station with cars that are 15 inches ATR, and a commuter railroad uses the same platform with cars that are 25 inches ATR, the platform would be level with respect to the Amtrak cars. The commuter railroad would have to provide another means of access, such as lifts. In all such cases where mixed rail equipment will be used, the rule requires that both FRA and FTA be consulted by the railroads involved. As in other cases where level-entry boarding is not used, the railroad must obtain FTA and/or FRA approval for the means the railroad wants to use to meet the performance standard.

The performance standard approach avoids the objections to the NPRM based on allegations of conflict between higher-level platforms and freight traffic, since platforms being constructed or altered in stations where tracks adjacent to the platforms are shared with freight would not have to provide level-entry boarding. Other solutions could be used at such stations.

The details of the “track passing through stations and adjacent to platforms is shared with existing freight rail operations” language are important. There may be some stations that serve lines that are shared by passenger and freight traffic. However, if freight traffic does not actually go through a particular station (e.g., because freight traffic bypasses the station), level-entry boarding is still required. There could also be situations in which multiple tracks pass through a station, and freight traffic uses only a center track, not a track which is adjacent to a platform. In such cases, the new or altered platform would have to provide level-entry boarding. It is important to note that this language refers to “existing” freight rail traffic, as opposed to the possibility that freight traffic might use the track in question at some future time. Likewise, if freight trains have not used a track passing through a station in a significant period of time (e.g., the past 10 years), the Department does not view this as constituting “existing freight rail traffic.”

Where a railroad operator wishes to provide access to its rail cars through a means other than level-entry boarding, it is essential that it provide an integrated, safe, timely, reliable, and effective means of access for people with disabilities. A railroad is not required to choose what might be regarded as a more desirable or convenient method over a less desirable or convenient method, or to choose a more costly option over a less costly option. What a railroad must do is to ensure that whatever option it chooses works. However, to assist railroads in choosing the most suitable option, the rule requires that a railroad not using level-entry boarding, if it chooses an approach other than the use of car-borne lifts, must perform a comparison of the costs (capital, operating, and life-cycle costs) of car-borne lifts versus the means preferred by the railroad operator, as well as a comparison of the relative ability of each of the two alternatives (i.e., car-borne lifts and the railroad's preferred approach) to provide service to people with disabilities in an integrated, safe, reliable, and timely manner. The railroad must submit this comparison to FTA and FRA at the same time as it submits its plan to FRA and/or FTA, as described below, although the comparison is not part of the basis on which the agencies would determine whether the plan meets the performance standard. In creating this comparison, railroads are strongly encouraged to consult with interested individuals and groups and to make the comparison readily available to the public, including individuals with disabilities.

To ensure that the railroad's chosen option works, the railroad must provide to FRA or FTA (or both), as applicable, a plan explaining how its preferred method will provide the required integrated, safe, reliable, timely and effective means of access for people with disabilities. The plan would have to explain how boarding equipment (e.g., bridge plates lifts, ramps, or other appropriate devices) and/or platforms will be deployed, maintained, and operated, as well as how personnel will be trained and deployed to ensure that service to individuals with disabilities was provided in an integrated, safe, timely, effective, and reliable manner. FTA and/or FRA will evaluate the proposed plan and may approve, disapprove, or modify it. It should be emphasized that the purpose of FTA/FRA review of this plan is to make sure that whatever approach a railroad chooses will in fact work; that is, it will really result in an integrated, safe, reliable, timely and effective means of access for people with disabilities. If a plan, in the view of FRA or FTA, fails to meet this test, then FTA or FRA can reject it or require the railroad to modify it to meet the objectives of this provision.

In considering railroads' plans, the agencies will consider factors including, but not limited to, how the proposal maximizes integration of and accessibility to individuals with disabilities, any obstacles to the use of a method that could provide better service to individuals with disabilities, the safety and reliability of the approach and related technology proposed to be used, the suitability of the means proposed to the station and line and/or system on which it would be used, and the adequacy of equipment and maintenance and staff training and deployment. FTA and FRA will evaluate railroads' plans with respect to whether they achieve the objectives of the performance standard.

For example, some commenters have expressed significant concerns about the use of station-based lifts, noting instances in which such lifts have not been maintained in a safe and reliable working order. A railroad proposing to use station-based lifts would have to describe to FTA or FRA how it would ensure that the lifts remained in safe and reliable operating condition (such as by cycling the lift daily or other regular maintenance) and how it would ensure that personnel to operate the lift were available in a timely manner to assist passengers in boarding a train. This demonstration must clearly state how the railroad expects that its operations will provide safe and dignified service to the users of such lifts.

FRA and FTA are committed to providing timely responses to railroads' proposals. Consequently, FRA/FTA will provide initial written responses within 30 days of receiving railroads' written proposals. These responses will say either that the submission is complete or that more information is needed. Once the requested additional information is received, and/or a complete package has been made available to FTA/FRA for review, as acknowledged by FRA/FTA in writing, FRA/FTA will provide a substantive response accepting, rejecting, or modifying the proposal within 120 days. There may be circumstances (e.g., the necessity for site visits, engaging a consultant to assist FRA/FTA, consultation with other agencies such as the Access Board or the Department of Justice) that will force FRA/FTA to take longer to respond. In such a case, FRA/FTA will provide a written communication to the railroad setting forth the reasons for the delay and an estimate of the additional time (not to exceed an additional 60 days) that FRA/FTA expect to take to finalize a substantive response to the proposal. While the Department is committed to meeting these timeframes, delays in responding do not imply approval of a railroad's plan.

Railroads have the responsibility of making sure that their means of providing access work in practice as well as in concept. Railroads are reminded that FTA and FRA conduct regular compliance reviews of their grantees, and take enforcement actions if they find noncompliance with a rule. For example, if it appears that, in practice, a railroad is unable successfully to provide safe and reliable service using station-based lifts, even if its plans for doing so had been approved (e.g., the railroad is unable to deliver on a consistent basis the service to which it has committed in its approved plan, because its maintenance or staffing efforts are inadequate), then the Department can find the railroad in noncompliance with its ADA and section 504 obligations and require the railroad to take corrective action to ensure that the performance standard is met. The Department also retains the ability to propose additional rulemaking to address problems in railroads' performance and the methods railroads use to ensure nondiscriminatory access to their services.

In existing stations where it is possible to provide access to every car without station or rail car retrofits, rail providers that receive DOT financial assistance should be mindful of the requirement of 49 CFR 27.7(b)(2), which requires that service be provided “in the most integrated setting that is reasonably achievable.” For example, if a set of rail cars has car-borne lifts that enable the railroad to comply with section 37.42 at new or altered station platforms, it is likely that deployment of this lift at existing stations will be reasonably achievable. The use of a station-based lift at an existing station to serve more than one car of a train may well also be reasonably achievable (e.g., with movement of the lift, as needed). Similarly, it is likely that, in a system using mini-high platforms, making multiple stops at existing stations would be reasonably achievable. Such actions would serve the objective of providing service in an integrated setting. In addition, in situations where a railroad and the Department have negotiated access to every accessible car in an existing system (e.g., with car-borne lifts and mini-high platforms as a back-up), the Department expects the railroads to continue to provide access to every accessible car for people with disabilities. As noted above, passengers with disabilities would request access to the particular car they were interested in boarding where a means like a mini-high platform or station-based lifts was being used.

The Department is also providing, in section 37.42(f), for a maximum gap allowable for a platform to be considered “level.” However, this maximum is not intended to be the norm for new or altered platforms. The Department expects transportation providers to minimize platform gaps to the greatest extent possible by building stations on tangent track and using gap-filling technologies, such as moveable platform edges, threshold plates, platform end boards, and flexible rubber fingers on the ends of platforms. The Department encourages the use of Gap Management Plans and consultation with FRA and/or FTA for guidance on gap safety issues.

The final rule includes the NPRM's proposal for a safety requirement concerning the setback of structures and obstacles (e.g., mini-high platforms, elevators, escalators, and stairwells) from the platform edge. This provision is based on long-standing FRA recommendations and the expertise of the Department's staff. The Department believes that it is inadvisable, with the exception of boarding and alighting a train, to ever have a wheelchair operate over the two-foot wide tactile strips (i.e., detectable warning surfaces) that are parallel to the edge of the platform. This leaves a four-foot distance for a person in a typical wheelchair to maneuver safely past other people on the platform, stair wells, elevator shafts, etc. It also is important because a wheelchair user exiting a train at a door where there is not a six-foot clearance would likely have difficulty exiting and making the turn out of the rail car door. The requirement would also avoid channeling pedestrians through a relatively narrow space where, in crowded platform conditions, there would be an increased risk of someone falling off the edge of the platform. Since the rule concerns only new and altered platforms, the Department does not believe the cost or difficulty of designing the platforms to eliminate this hazard will be significant.

Even where level-entry boarding is provided, it is likely that, in many instances, bridge plates would have to be used to enable passengers with disabilities to enter cars, because of the horizontal gaps involved. Section 38.95(c)(5), referred to in the regulatory text, permits various ramp slopes for bridge plates, depending on the vertical gap in a given situation. In order to maximize the opportunity of passengers to board independently, the Department urges railroads to use the least steep ramp slope feasible at a given platform.