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

NPRM

The definition of “direct threat” has long been a key provision of this and other disability nondiscrimination regulations. “Direct threat” has been the Department's primary reference point in deciding several issues in which there has been tension between the safety concerns of transportation providers and the rights of persons with disabilities to access public transportation, such as prohibitions on wheelchair users being able to use certain bus stops, use of lifts by standees, and carriage of three-wheeled scooters that are not easily secured by existing bus securement devices. A key element of the concept is that, to justify a limitation on individuals with disabilities, there must be a significant threat to others—as distinct from to the individual with a disability—that cannot be eliminated by a modification of policies, practices or procedures, or by the provision of auxiliary aids or services. The NPRM indicated that the Department intended to add a definition of direct threat to 49 CFR 37.3 that would track the definition in DOJ's regulation, which defines direct threat in terms of a threat to the health and safety of others.