Americans With Disabilities Act: Final Circular, 60224-60242 [2015-25188]

Download as PDF mstockstill on DSK4VPTVN1PROD with NOTICES 60224 Federal Register / Vol. 80, No. 192 / Monday, October 5, 2015 / Notices obsolete equipment, and bring assets to a state of good repair as part of its recovery effort. We request that FTA clarify that ‘‘current design standards’’ may include standards developed by the transit agency or industry as well as state, local, or federal codes or standards. FTA Response: This section has been revised to clarify that current design standards also includes the industry’s or an agency’s own current operational specifications. Comment 16: The commenter states that to be consistent with FEMA and the Federal Highway Administration’s (FHWA’s) emergency relief programs, heavy maintenance should be an eligible expense for declared disasters. However, FTA should not adopt FHWA’s approach of utilizing a dollar threshold to define heavy maintenance, since transit agency size, utilization, regional costs and other factors impact the cost of work. Instead, we suggest that the heavy maintenance definition be based on each agency’s annual maintenance budget, including its budget for emergency contingency. FTA Response: The FTA has added language to clarify that the threshold for heavy maintenance will be determined on a case-by-case basis and that damages in excess of heavy maintenance to an asset or system will mean that all otherwise eligible disasterrelated repair and emergency response costs may be eligible for reimbursement. Further, FTA does not propose to establish a dollar value threshold, either absolute or relative to agencies’ annual budgets, for defining heavy maintenance. Comment 17: The commenter requests that if a State or local building code requires a higher minimum elevation than FEMA requires, that higher elevation should apply. In cases where the transit agency has its own documented standards, those should be allowable as well. FTA Response: This section has been revised to allow a transit agency’s documented flood elevation standards to apply for emergency relief projects, provided that they are higher than FEMA’s elevations and comply with State and local building codes. Comment 18: The commenter expressed appreciation for the detailed discussion of different insurance settlement scenarios since policy structures vary widely across agencies. In this section or elsewhere in the proposed manual, FTA should address the scenario where the cost to repair damages exceeds the total of insurance proceeds plus FTA ER funding. VerDate Sep<11>2014 18:34 Oct 02, 2015 Jkt 238001 FTA Response: The FTA has added language addressing this potential scenario. In some cases, multiple similar or closely related comments have been summarized in this discussion of comments and responses. The final guidance document is available on FTA’s Web site at: www.fta.dot.gov/emergencyrelief. Therese W. McMillan, Acting Administrator. [FR Doc. 2015–25187 Filed 10–2–15; 8:45 am] BILLING CODE P DEPARTMENT OF TRANSPORTATION Federal Transit Administration [Docket Nos. FTA–2014–0024, FTA–2014– 0003, FTA–2012–0045] Americans With Disabilities Act: Final Circular Federal Transit Administration (FTA), DOT. ACTION: Notice of availability of final circular. AGENCY: The Federal Transit Administration (FTA) has placed in the docket and on its Web site, guidance in the form of a Circular to assist grantees in complying with the Americans with Disabilities Act (ADA). The purpose of this Circular is to provide recipients of FTA financial assistance with instructions and guidance necessary to carry out the U.S. Department of Transportation’s ADA regulations. DATES: Effective Date: The final Circular becomes effective November 4, 2015. FOR FURTHER INFORMATION CONTACT: For program questions, Dawn Sweet, Office of Civil Rights, Federal Transit Administration, 1200 New Jersey Ave. SE., Room E54–306, Washington, DC 20590, phone: (202) 366–4018, or email, dawn.sweet@dot.gov. For legal questions, Bonnie Graves, Office of Chief Counsel, same address, Room E56–306, phone: (202) 366–4011, fax: (202) 366–3809, or email, bonnie.graves@dot.gov. SUPPLEMENTARY INFORMATION: SUMMARY: Availability of Final Circular This notice provides a summary of the final changes to the ADA Circular and responses to comments. The final Circular itself is not included in this notice; instead, an electronic version may be found on FTA’s Web site, at www.fta.dot.gov, and in the docket, at www.regulations.gov. Paper copies of the final Circular may be obtained by contacting FTA’s Administrative Services Help Desk, at (202) 366–4865. PO 00000 Frm 00111 Fmt 4703 Sfmt 4703 Table of Contents I. Overview II. Chapter-by-Chapter Analysis A. General Comments B. Chapter 1—Introduction and Applicability C. Chapter 2—General Requirements D. Chapter 3—Transportation Facilities E. Chapter 4—Vehicle Acquisition and Specifications F. Chapter 5—Equivalent Facilitation G. Chapter 6—Fixed Route Service H. Chapter 7—Demand Responsive Service I. Chapter 8—Complementary Paratransit Service J. Chapter 9—ADA Paratransit Eligibility K. Chapter 10—Passenger Vessels L. Chapter 11—Other Modes M. Chapter 12—Oversight, Complaints, and Monitoring I. Overview FTA is publishing Circular C 4710.1, regarding the Americans with Disabilities Act (ADA), to provide recipients of FTA financial assistance with information regarding their ADA obligations under the regulations, and to provide additional optional good practices and suggestions to local transit agencies. The proposed Circular was submitted to the public for notice and comment in three phases. FTA issued a notice of availability of the proposed first phase, entitled ‘‘Americans with Disabilities Act: Proposed Circular Chapter, Vehicle Acquisition,’’ in the Federal Register on October 2, 2012 (77 FR 60170). The comment period closed December 3, 2012. FTA issued a notice of availability of the second phase, entitled ‘‘Americans with Disabilities Act: Proposed Circular Amendment 1,’’ in the Federal Register on February 19, 2014 (79 FR 9585). The comment period closed April 21, 2014. Amendment 1 introduced the following chapters: Chapter 1 (Introduction and Applicability); Chapter 2 (General Requirements); Chapter 5 (Equivalent Facilitation); and Chapter 8 (Complementary Paratransit Service). FTA issued a notice of availability of the third phase, entitled ‘‘Americans with Disabilities Act: Proposed Circular Amendment 2,’’ in the Federal Register on November 12, 2014 (79 FR 67234). The comment period was scheduled to close on January 12, 2015, but at the request of commenters, FTA extended the comment period until February 11, 2015. Amendment 2 introduced the following chapters: Chapter 3 (Transportation Facilities); Chapter 6 (Fixed Route Service); Chapter 7 (Demand Responsive Service); Chapter 9 (ADA Paratransit Eligibility); Chapter 10 (Passenger Vessels); Chapter 11 (Other Modes); and Chapter 12 (Oversight, E:\FR\FM\05OCN1.SGM 05OCN1 mstockstill on DSK4VPTVN1PROD with NOTICES Federal Register / Vol. 80, No. 192 / Monday, October 5, 2015 / Notices Complaints, and Monitoring). This amendment also proposed additional text on monitoring practices as addenda to Chapter 2 (General Requirements) and Chapter 8 (Complementary Paratransit Service). FTA received comments from 75 unique commenters, with many commenters submitting comments on two or three of the notices. Commenters included individuals, transit agencies, disability rights advocates, State DOTs, trade associations, and vehicle manufacturers. This notice addresses comments received and explains changes we made to the proposed Circular in response to comments. FTA developed the Circular subsequent to a comprehensive management review of the agency’s core guidance to transit grantees on ADA and other civil rights requirements. A primary goal of the review was to assess whether FTA was providing sufficient, proactive assistance to grantees in meeting civil rights requirements, as opposed to reacting to allegations of failure to comply with the requirements. Based on the review, FTA identified the need to develop an ADA circular similar to the circulars long in place for other programs. FTA recognizes there is value to the transit industry and other stakeholders in compiling and organizing information by topic into a plain English, easy-to-use format. A circular does not alter, amend, or otherwise affect the DOT ADA regulations themselves or replace or reduce the need for detailed information in the regulations. Its format, however, will provide a helpful outline of basic requirements with references to the applicable regulatory sections, along with examples of practices used by transit providers to meet the requirements. Simply stated, this circular is a starting point for understanding ADA requirements in the transit environment and can help transit agencies avoid compliance review findings of deficiency. Several commenters objected to FTA’s development of an ADA Circular. They asserted that a ‘‘best practices’’ manual might be a more useful tool for stakeholders. The purpose of a Circular is to provide grantees with direction on program-specific issues, and this final Circular does that. Most of FTA’s program circulars provide guidance on statutory provisions in the absence of a robust regulatory scheme. Here, we are providing guidance on a regulatory scheme that can be imposing and, in some cases, extremely technical. FTA has found stakeholder comments on the various phases of the proposed Circular to be extremely helpful in developing a VerDate Sep<11>2014 18:34 Oct 02, 2015 Jkt 238001 final document that we believe will be useful to transit agencies, advocates, and persons with disabilities alike. Some commenters asserted the Circular was a ‘‘de facto regulation’’ that would have significant cost impacts and should be subject to evaluation under Executive Orders 12866 and 13563, which direct federal agencies to assess costs and benefits of available regulatory alternatives. FTA is confident the final Circular does not include any new requirements and thus has no cost impacts. Where commenters asserted we had ‘‘blended’’ the regulations with good practices in the proposed Circular, we have clearly distinguished between the regulations and optional good practices or recommendations in the final Circular. Commenters also asserted that FTA does not have the authority to interpret the DOT ADA regulations, and that any such interpretations must come from DOT. FTA is the agency charged with enforcing the ADA as it applies to public transportation services, and has been interpreting the regulations through complaints, letters of finding, and compliance reviews for many years. We note that we coordinated development of the Circular with DOT, and we also consulted with the U.S. Department of Justice (DOJ) and the United States Architectural and Transportation Barriers Compliance Board (Access Board). Some commenters requested that FTA publish all twelve chapters one more time for additional notice and comment. Given that interested stakeholders have had an opportunity to comment on all of the guidance presented in the final Circular, and providing a second opportunity to comment would not be consistent with past practice, we decline to undertake a second round of notice and comment. FTA received numerous comments outside the scope of the Circular, such as comments objecting to the DOT regulations themselves or requesting amendments to the regulations, comments rendered moot by publication of DOT’s ‘‘Final Rule on Transportation for Individuals with Disabilities; Reasonable Modification of Policies and Practices’’ [hereinafter, ‘‘final rule on reasonable modification’’] (80 FR 13253) (http://www.gpo.gov/fdsys/pkg/FR2015-03-13/pdf/2015-05646.pdf), and comments with specific factual scenarios that are better addressed through requests for technical assistance. This notice does not respond to comments outside the scope of the Circular. PO 00000 Frm 00112 Fmt 4703 Sfmt 4703 60225 II. Chapter-by-Chapter Analysis A. General Comments The Circular is organized topically, as requested by several commenters. Each chapter begins with an introduction, and is divided into sections and subsections. In response to many comments requesting inclusion and clear delineation of the regulations in the text of each section, we revised the organizational structure to include the text of the regulations, followed by a clearly delineated discussion section that provides means of complying with the provisions and optional good practices. Thus, many sections and subsections begin with a ‘‘Requirement’’ section, which states the regulations relevant for that section, and then a ‘‘Discussion’’ section, which includes explanation of the requirement, relevant DOT or FTA guidance, and suggested optional good practices. The Circular does not, and is not intended, to exhaustively cover all of the DOT ADA requirements applicable to FTA grantees. Additionally, the Circular does not establish new requirements; it represents current regulations, guidance, and policy positions of DOT and FTA. Many commenters suggested that throughout the proposed Circular, FTA was imposing requirements not otherwise found in the regulations. For example, several commenters stated that FTA expanded regulatory requirements by mixing the DOT ADA regulations with suggestions and good practices. Commenters in particular were concerned with use of the word ‘‘should,’’ which they asserted creates ambiguity as to whether a statement is mandatory or permissive. In response, we removed ‘‘should’’ from the final Circular (except, for example, where we quoted 49 CFR part 37 and Appendix language) and clarified which items are mandatory requirements, and which are permissive. In addition to delineating requirements by having separate ‘‘Requirement’’ and ‘‘Discussion’’ sections as discussed above, we indicated requirements with mandatory words such as ‘‘must,’’ ‘‘obligates,’’ or ‘‘requires.’’ Similarly, we indicated a certain action or activity is not a requirement by using terms such as ‘‘encourages,’’ ‘‘optional,’’ ‘‘recommends,’’ or ‘‘suggests.’’ We added regulatory text and citations to 49 CFR part 37, Appendices D and E of 49 CFR part 37, and previously published DOT guidance throughout the final Circular to provide support for requirements. Several commenters requested clarification of items presented as ‘‘good practices.’’ E:\FR\FM\05OCN1.SGM 05OCN1 mstockstill on DSK4VPTVN1PROD with NOTICES 60226 Federal Register / Vol. 80, No. 192 / Monday, October 5, 2015 / Notices They expressed concern that these ‘‘good practices’’ might form the basis for a deficiency in a future FTA oversight review, and some asserted these suggested ‘‘good practices’’ would take the place of local planning processes. Good practices, while encouraged, are not requirements, will not lead to findings in compliance reviews, and should not take the place of local planning and decision-making processes. To address these concerns we added this statement in the introduction of each chapter: ‘‘FTA recommendations and examples of optional practices are included throughout the Circular and do not represent requirements. FTA recognizes that there are many different ways agencies can implement the regulatory requirements and ensure the delivery of compliant service. FTA encourages transit agencies to engage riders with disabilities when making decisions about local transit service.’’ Many commenters requested specific citations to the regulations, letters of finding, existing guidance and case law. As stated above, we added the citations to the regulations in each section and subsection of the final Circular, as well as direct quotes from and hyperlinks to Appendix D and Appendix E to Part 37. In addition, we included several links to letters of finding from FTA’s Office of Civil Rights, as well as DOT guidance documents. Similarly, a commenter asked for a thorough explanation of the role of other federal agencies regarding the ADA. Where relevant and helpful, we included references to other agencies such as the Access Board, the Department of Justice, the Federal Highway Administration and the Federal Railroad Administration. We did not, however, include citations to case law in the final Circular. FTA circulars typically do not include case law citations, and where we included one in chapter 3 of the proposed Circular, commenters objected. We have removed the citation from chapter 3 and instead discuss the relevant case law in this Federal Register notice in the chapter 3 discussion, below. Commenters made stylistic and word choice suggestions throughout the Circular. In many cases, we adopted them because they improve the readability, accuracy, or clarity of the document. Commenters also pointed out typographical errors, grammatical mistakes, bad web links, lack of citations, and inconsistent numbering and cross references throughout the Circular. We made corrections based on those comments, and we made additional stylistic, grammatical, and minor technical changes to improve readability of the document. VerDate Sep<11>2014 18:34 Oct 02, 2015 Jkt 238001 In addition, we made changes to enhance clarity for the reader. We reduced repetition in the text and honed the language to be clearer and more direct. We added more headings and subheadings throughout to make it easier for the reader to find and reference sections. We reorganized chapters and moved sections around for more logical flow and ease of read. We deleted text that either was not relevant or provided little value to the reader. We also added internal cross-reference citations to assist the reader in following topical discussions throughout the document. Several commenters suggested the circular should provide specificity when discussing the types of public transportation systems and services, particularly in regard to ADA complementary paratransit and general public demand responsive service. Throughout the Circular, we refrain from using the term ‘‘paratransit’’ in isolation unless the type of paratransit— ADA complementary or general public demand response—to which we are referring is clear. Another commenter asked for definitions for ‘‘fixed route’’ and ‘‘demand responsive service,’’ and we have provided definitions of those terms and other terms where relevant; for example, at the start of Chapter 7 we provide the section 37.3 definitions for fixed route and demand responsive service and include a brief discussion. Commenters noted that portions of the text included the term ‘‘common wheelchair’’ although the term was removed from the DOT ADA regulations in the 2011 Amendments. The dimensions of a common wheelchair (30 inches by 48 inches, weighing 600 pounds when occupied) remain the minimum dimensions that must be accommodated on a transit vehicle, pursuant to 49 CFR part 38. In the final Circular, we use the term only when referring to securement areas (vehicle acquisition bus and van checklist in chapter 4), and when quoting 49 CFR 37.123 in chapter 9. In addition, we have added some explanatory text to chapter 2. B. Chapter 1—Introduction and Applicability Chapter 1 introduces the Circular, provides a brief summary of the regulations applicable to public transit providers, discusses the applicability of the DOT ADA regulations, includes a list of transportation services not addressed in the Circular, and outlines the organization of the document. To clarify the types of entities addressed, we added a footnote with the DOT ADA regulatory definition of PO 00000 Frm 00113 Fmt 4703 Sfmt 4703 public entity. Consistent with organizing the final Circular by topic, we removed the discussions included in the proposed Circular on university transportation systems, vanpools, airport transportation systems, and supplemental services for other transportation modes from Chapter 1. We moved the discussions on university transportation systems and supplemental services for other transportation modes to Chapter 6 and vanpools to Chapter 7. We added airport transportation systems to the list of transportation services not covered in the Circular. Several commenters expressed concern about which entities are covered or not covered by the ADA regulations and which are addressed in the Circular. In response, we made edits to Chapter 1 to address the coverage of both the Circular specifically and the DOT ADA regulations generally. On the topic of services under contract or other arrangements, one commenter requested guidance on whether the ‘‘stand-in-the-shoes’’ requirements referenced in the DOT ADA regulations apply to a situation in which a public entity contracts with another public entity. We added Appendix D language to clarify that a public entity may contract out its service but not its ADA responsibilities. Another commenter suggested adding an example in the section, ‘‘When the Stand-in-the-Shoes Requirements Do Not Apply’’ to clarify when private entities do not ‘‘stand in the shoes’’ of the public entity. We added language to clarify this point. Moreover, one commenter expressed concern about the stand-in-the-shoes requirement as it relates to private entities receiving section 5310 funding (Enhanced Mobility for Seniors and Individuals with Disabilities Formula Program). In the proposed Circular we distinguished between ‘‘traditional section 5310 projects’’ and other projects when applying the ‘‘stand-in-the-shoes’’ provisions. We revised this section to instead draw a distinction between closed-door and open-door service. Essentially, subrecipients that receive section 5310 funding and provide closed-door service to their own clientele do not stand in the shoes of the state administering agencies or designated recipients. Subrecipients that provide open door service, defined as service that is open to the general public or to a segment of the general public, do stand in the shoes of state agencies or designated recipients. One commenter expressed concern about the following statement: ‘‘FTA grantees are also subject to the E:\FR\FM\05OCN1.SGM 05OCN1 Federal Register / Vol. 80, No. 192 / Monday, October 5, 2015 / Notices mstockstill on DSK4VPTVN1PROD with NOTICES Department of Justice (DOJ) ADA regulations. Public entities are subject to 28 CFR part 35, which addresses state and local government programs.’’ To be more precise, we removed the statement and directly cited 49 CFR 37.21(c). C. Chapter 2—General Requirements Chapter 2 discusses the regulations related to nondiscrimination and other applicable crosscutting requirements, including prohibitions against various discriminatory policies and practices, equipment requirements for accessible services, assistance by transit agency personnel, service animals, oxygen supplies, accessible information, personnel training, reasonable modification of policy, and written policies and procedures. The content of Chapter 2 of the final Circular is substantially similar to Chapter 2 of the proposed Circular, except we have added Reasonable Modification of Policy, and we removed the discussion on monitoring. In addition to edits made in response to comments, we have made stylistic and technical changes, and reorganized the chapter to be consistent with the format of the rest of the Circular. We did not include reasonable modification in the proposed Circular, but several commenters preemptively objected to the concept of reasonable modification being included in the Circular without the support of a final rule. The DOT’s final rule on reasonable modification was published on March 13, 2015 (80 FR 13253), and became effective on July 13, 2015. Therefore, we added the ‘‘Reasonable Modification of Policy’’ section to this chapter, provided background on the final rule, and discussed requirements of and exceptions to the rule with language from the preamble and the final rule itself. In particular, we noted the rule does not require an agency to establish a separate process for handling reasonable modification requests; an agency can use some or all of its procedures already in place. The ‘‘discussion’’ sections following the regulatory text do not attempt to interpret the regulation beyond what is published in the final rule, the preamble, and Appendix E to 49 CFR part 37. We received a number of comments on nondiscrimination and prohibited policies and practices. In the examples of policies and practices FTA considers discriminatory, one commenter suggested including related state laws. Due to the wide variation of nondiscrimination laws across states and local jurisdictions, we decided not to include state laws in the examples. VerDate Sep<11>2014 18:34 Oct 02, 2015 Jkt 238001 While one commenter supported the examples listed, another commenter, citing the example of boarding passengers with disabilities separately, noted there are situations where requiring persons with disabilities to board separately is valid, such as allowing a rider with a mobility device to board first or last to ensure space in the securement area. We determined that including the example about separate boarding could create confusion, so we removed it from the bulleted list. Regarding the prohibition against imposition of special charges, one commenter suggested including an additional example regarding cancelled and no-show trips. We added this example to the bulleted list of examples of prohibited charges. Another commenter asserted providers must not charge extra for paratransit service. Charging twice the fixed route fare is an allowable charge for complementary paratransit service and is not a special charge. As discussed in chapter 8, charging for premium complementary paratransit service (e.g., same day trips, ‘‘will call’’ service, etc.) is permitted. On service denials due to rider conduct, several commenters suggested making clear that verbal assault of a driver or other passengers can be grounds for refusing service. We included this suggestion and added an example. A few commenters wanted clarification on the statement that a transit agency cannot deny service to persons with disabilities based on what the transit agency perceives to be safe or unsafe. Because a transit agency is permitted to deny service to someone who is a direct threat to the health or safety of others, we added the qualification that an agency cannot deny service to persons with disabilities based on what it perceives to be safe or unsafe ‘‘for that individual.’’ Another commenter was concerned we had expanded the meaning of ‘‘direct threat’’ without providing clarity as to how to make a direct threat determination. In response, we note the final rule on reasonable modification amended sections 37.3 and 37.5 to include direct threat as a cause for service denial. We incorporated relevant language from Appendix D about an agency making an individualized assessment based on reasonable judgment that accounts for several factors. We also added clarification that direct threat to others may overlap with seriously disruptive behavior. One commenter expressed support for the discussion on the right of individuals to contest service denials. Another commenter suggested inclusion PO 00000 Frm 00114 Fmt 4703 Sfmt 4703 60227 of additional language related to appeal rights. We revised the language to reflect that riders must have the opportunity to present information to have service reinstated. We received multiple comments on equipment requirements for accessible service. One commenter stated that FTA should encourage transportation providers to perform routine maintenance and updates to features over which they have control. We note both the proposed and final Circular include language that transit agencies must inspect all accessibility features often enough to ensure they are operational and to undertake repairs or other necessary actions when they are not. In response to a comment requesting clarification on snow removal and asking for a specific timeframe in which snow must be removed to allow for accessible routes to transit service, we added a subsection, ‘‘Ensuring Accessibility Features Are Free from Obstructions.’’ We stated in the subsection that agencies have an obligation to keep accessible features clear of obstructions if they have direct control over the area. We included an illustrative example of how a particular transit agency clears snow, but we do not prescribe a specific timeframe because there are context-specific factors to account for, as well as local laws governing timeframes for snow removal. Another commenter asked whether a transit agency has an obligation to tow illegally parked vehicles occupying accessible parking spaces. We stated in this subsection that agencies have an obligation to enforce parking bans and to keep accessible features clear where they have direct control over the area, which may include removing illegally parked vehicles. We received numerous comments on lifts, ramps, and securement use. In the final Circular, throughout the section, we added language from Appendix D and previously published DOT Disability Law Guidance to clarify the discussion. In regard to wheelchairs, one commenter indicated it required footrests for personal safety of the passenger while maneuvering. We made clear in the final Circular a transit agency cannot require a wheelchair to be equipped with specific features, and noted that a policy requiring wheelchairs to be so equipped is prohibited by the general nondiscrimination provision of 49 CFR 37.5. Another commenter requested an express statement that blocking an aisle is a legitimate safety concern for which E:\FR\FM\05OCN1.SGM 05OCN1 mstockstill on DSK4VPTVN1PROD with NOTICES 60228 Federal Register / Vol. 80, No. 192 / Monday, October 5, 2015 / Notices a wheelchair can be excluded. In response, we included language from the preamble to DOT’s September 19, 2011, ‘‘Final Rule on Transportation for Individuals with Disabilities at Intercity, Commuter, and High Speed Passenger Railroad Station Platforms; Miscellaneous Amendments’’ (76 FR 57924) to address this concern, and we added Appendix D text. In regards to securement areas, a commenter suggested adding a qualification that wheelchairs need to fit in the securement area, and we included the suggested language in the final Circular. One commenter also supported the discussion on maintaining an inventory of lifts, ramps, and securement areas. On boarding and alighting direction, one commenter asked us to clarify that the requirements applied to ramps as well as lifts. In response, we added a reference including ramps. Another commenter suggested we include language that an agency advertise how its vehicles meet or exceed the Part 38 design standards as to wheelchair accessibility. In response, we included examples of where agencies may provide such up-to-date information: On schedules, rider guides, agency Web sites, and through outreach. A few commenters requested further guidance on other mobility devices. We included language from DOT Disability Law Guidance that a provider is not required to allow onto a vehicle a device that is too big or poses a direct threat to the safety of others, and provided a link to the guidance in a footnote. Another commenter requested guidance related to a bicycle as a mobility device. In response, we added bicycles to the list of items not primarily designed for use by individuals with mobility impairments, along with shopping carts and skateboards. A few commenters sought clarification as to whether users of non-wheelchair mobility devices, such as rollators, can be required to transfer to a vehicle seat. In response, we added language stating an agency can require people using such devices to transfer to a vehicle seat. One commenter pointed out an inconsistency of using both ‘‘lap and/or shoulder belts’’ and ‘‘lap and shoulder belts’’ and suggested using a consistent term. In response to this and other comments on the subject, we used the more accurate terms of ‘‘seat belts and shoulder harnesses.’’ Further, we provided a link to DOT Disability Law Guidance for more information on seat belts. On allowing standees on lifts, one commenter suggested explicitly mentioning passengers with non-visible disabilities as eligible users. In VerDate Sep<11>2014 18:34 Oct 02, 2015 Jkt 238001 response, we added language specifying that the standees on lifts requirement applies to riders who may not have a visible or apparent disability. In addition, we provided Appendix D language about allowing individuals who have difficulty using steps to use a lift on request. Regarding assistance by transit agency personnel, one commenter suggested clarification of assistance with securement systems, ramps, and lifts. We provided examples of types of assistance, and clarified the interaction between direct threat and required assistance for securement systems, ramps, and lifts. Of note, we explained the regulations do not set a minimum or maximum weight for an occupied wheelchair that drivers are obligated to help propel, and that transit agencies will need to assess whether a level of assistance constitutes a direct threat to a driver on a case-by-case basis. We received several comments related to service animals. Some commenters requested that DOJ and DOT reconcile their rules on service animals; the Circular explains the current requirements, and we have forwarded those comments to DOT for their consideration. One commenter appreciated the specification that emotional support is not enough to meet the regulatory definition for service animal because animals that provide emotional support passively as ‘‘emotional support animals’’ are not trained to perform a certain task. Another commenter asked whether service animals include those to detect onset of illnesses like seizures. In response, we included examples of service animals that serve individuals with hidden disabilities such as seizures or depression. In response to comments requesting clarification on how to determine if an animal is a service animal, we added to the final Circular the two questions transit personnel may ask a passenger with a service animal: (1) Is the animal a service animal required because of a disability? and, (2) What work or task has the animal been trained to perform? On the bulleted list of guidance on service animals, one commenter supported the point about transit agencies not imposing limits on the number of service animals accompanying a rider, as well as the examples of when a service animal is under the owner’s control and when it is not. A few commenters suggested including more examples to the bulleted list of guidance applicable to service animals: A driver is not required to take control of a service animal, and clarification regarding passengers with PO 00000 Frm 00115 Fmt 4703 Sfmt 4703 animal allergies. In response, we edited the list to state a rider’s request regarding the driver taking charge of a service animal may be denied and, because the regulations expressly state that service animals must be allowed to accompany individuals on vehicles and in facilities, we added text stating that other passengers’ allergies to animals would not be grounds for denying service to a person with a service animal. Further, we added a footnote referencing DOJ guidance on service animals with the note that some of the guidance may be inapplicable to a transit environment. One commenter asked for clarification regarding the ADA regulation and DOT safety guidance related to oxygen. We revised the discussion to make clear that commonly used portable oxygen concentrators do not require the same level of special handling as compressed oxygen cylinders. This revision includes a citation to the regulation and an explanation of the referenced FTA complaint response. We received multiple comments on the provision of information in accessible formats. One commenter requested guidance on when and how often a transit agency should provide information on system limitations, such as elevator/escalator outages and service delays. We do not prescribe a single standard because of the vast differences among transit agencies, but we cited the regulation and explained that a transit agency is obligated to ensure access to information, including information related to temporary service changes/ outages, for individuals with disabilities. One commenter supported the nuance that information needs to be in usable format, even if it is not a preferred format. On the topic of Web site accessibility, a few commenters requested clarification on requirements and examples of good practices. Another commenter noted Web site accessibility is a requirement, not a good practice. In response, we added an ‘‘Accessible Web sites’’ subsection, in which we specified that section 37.167(f) requires information concerning transportation services to be available and accessible. We also referred to DOJ and Access Board guidance. Another commenter stated visual displays must be made available for people who have hearing disabilities. In response, we added the ‘‘Alternatives to Audio Communications’’ subsection, which addresses visual information, and referenced DOT Standard 810.7. One commenter stated the voice relay services must be maintained despite advances in smartphone and other E:\FR\FM\05OCN1.SGM 05OCN1 Federal Register / Vol. 80, No. 192 / Monday, October 5, 2015 / Notices mstockstill on DSK4VPTVN1PROD with NOTICES communications technology. In response, we included language on the importance of continuing to advertise relay service numbers for riders who cannot access the latest technologies. We received a few comments on personnel training. One commenter disagreed with the statement that, ‘‘rider comments and complaints can be the ultimate tests of proficiency; comments that reveal issues with the provision of service are good indicators employees are not trained proficiently,’’ because the rider comments may not contain violations of the regulations. In response, we replaced ‘‘are’’ with ‘‘may serve as’’ in the sentence at issue. Another commenter suggested including more language on training, specifically for contractors and third-party operators. Accordingly, we included language directly from Appendix D. We received numerous comments related to monitoring as proposed in Chapter 2, which was comprised primarily of bulleted lists on data collection, reviewing data, and direct observation. Several commenters disagreed with its inclusion and asked for the regulatory basis for these requirements. Multiple commenters disagreed with the discussion, asserting it would be time consuming and costly. Several commenters called for its deletion. Conversely, there were commenters who supported the inclusion of this section. In response to commenters’ concerns—and in recognition that the specifics of a monitoring approach are developed locally—we removed the proposed monitoring section from this chapter. D. Chapter 3—Transportation Facilities Chapter 3 discusses the regulations related to transportation facilities, with emphasis on the requirements for new construction and alterations. It also addresses common issues with applying the requirements. On the topic of coordinating with other entities, several commenters objected to this section, asserting that FTA was adding a requirement that did not exist in the regulation, while one commenter believed the discussion was critically important to accessibility for individuals who use public transportation and required more than a single paragraph on the topic. Some commenters noted that coordination with public agencies and other stakeholders, whether formally or informally, is a routine part of their local decision-making process. The commenters who objected believed this discussion created a new, open-ended responsibility that was not supported by the regulations; one particular concern VerDate Sep<11>2014 18:34 Oct 02, 2015 Jkt 238001 was that this language appeared to create an active monitoring requirement for every facility element in their service area. In response, we added a subsection on ‘‘Coordination with Other Entities,’’ which states FTA encourages a transit agency to engage with other entities that control facility elements used to access the transportation facility when undertaking a construction or alteration project involving its own facilities. This subsection also explains the goal of coordination efforts and uses the terms ‘‘engage’’ and ‘‘encourage’’ to distinguish the efforts from a highly formalized coordination process. Thus, there is no open-ended responsibility with unlimited obligations on the part of transit agencies. Several commenters asked for specifics as to what coordination efforts should look like. Because these are context-specific engagement efforts, we did not provide extensive examples of what engagement looks like. We did, however, include an example on advising a municipality that its sidewalks adjacent to a transit agency’s facilities were inaccessible. Another commenter suggested the agencies document coordination efforts to demonstrate a good faith effort to coordinate, in the event the other entity is uncooperative or nonresponsive, and we adopted this suggestion. In a related comment, another commenter was concerned with the recourse available for unsuccessful engagement efforts. We added language that a transit agency can contact the FTA Office of Civil Rights to help facilitate coordination with the Federal Railroad Administration (FRA), the Federal Highway Administration (FHWA), or other counterparts. Next, we received numerous comments on the section, ‘‘Common Issues in Applying the DOT Standards.’’ Some commenters supported this section because it provided a good level of detail and explained important issues. One commenter suggested discussing escalators and elevators, but we declined to add these topics because in the context of applying the DOT Standards, they are not common issues. We received several comments on passenger loading zones. Some of the commenters asked for added details or further explanation of the discussion and figures. We did not add all of the suggestions because we wanted the figures to be easily readable and focused on common issues. But we did revise figures based on suggestions, such as including a curb ramp as part of an accessible route to the facility entrance in Figure 3–2, which depicts the required dimensions for passenger loading zones and access aisles. On the PO 00000 Frm 00116 Fmt 4703 Sfmt 4703 60229 topic of curb ramps, a few commenters asked for clarification on level landing, and in response we added text providing the slope requirement for a level landing to Figure 3–3, which depicts curb ramp requirements and common deficiencies. One commenter suggested additional guidance on slopes and vertical lips rather than only pointing them out in Figure 3–3. We added an example regarding slopes in curb ramps that were too steep for wheelchairs to maneuver them, and cited to the relevant DOT Standards and FHWA guidance. In Figure 3–3, a commenter pointed out the detectable warnings incorrectly extend through the curb line, so we corrected the figure. Regarding station platforms, a few commenters stated the guidance on detectable warning orientation was unclear. We revised the statement on orientation and alignment to state they are commonly aligned at 90 degrees, but 45 degrees is acceptable. We received one comment regarding new construction. The commenter suggested including the manner in which conditions of structural impracticability may be petitioned to FTA. In response, we added the suggestion that transit agencies should contact the FTA Office of Civil Rights. We received numerous comments on the ‘‘Alteration of Transportation Facilities’’ section. Several commenters believed this section expanded the regulations concerning the various concepts of alterations, technical infeasibility, usability, and disproportionate cost. In response, we revised the section by incorporating suggestions and clarifying the requirements and discussion. Although we proposed to introduce the topic by citing the regulatory language and providing definitions and a case law example, commenters expressed concern with this approach. In response, we revised the section’s introductory paragraph to explain the two types of alterations (as described in 49 CFR 37.43(a)(1) and (a)(2), discussed below), as well as to note the difference between the two types, and the requirements for alterations. Commenters’ concerns generally centered on FTA’s interpretation of 49 CFR 37.43(a)(1) and (a)(2). Importantly, there is a distinction between these two provisions. Section 37.43(a)(1) applies to alterations of existing facilities that could affect the usability of the facility—what we have labeled in the final Circular, ‘‘General Alterations.’’ When making general alterations, the entity ‘‘shall make the alterations . . . in such a manner, to the maximum extent feasible, that the altered portions E:\FR\FM\05OCN1.SGM 05OCN1 mstockstill on DSK4VPTVN1PROD with NOTICES 60230 Federal Register / Vol. 80, No. 192 / Monday, October 5, 2015 / Notices of the facility are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs, upon the completion of such alteration.’’ In section 37.43(a)(1), cost is not a factor. On the other hand, section 37.43(a)(2) provides that when a public entity ‘‘undertakes an alteration that affects or could affect the usability of or access to an area of a facility containing a primary function, the entity shall make the alteration in such a manner that, to the maximum extent feasible, the path of travel to the altered area . . . [is] readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs, upon completion of the alteration. Provided, that alterations to the path of travel . . . are not required to be made readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs, if the cost and scope of doing so would be disproportionate.’’ This provision is discussed in the subsection, ‘‘Areas of Primary Function and Path of Travel.’’ Some commenters asserted this is a new interpretation, the interpretation adds regulatory requirements related to alterations, is inconsistent with the statute, and amounts to an unfunded mandate. Importantly, while the issue of alterations to the path of travel itself does not arise frequently, this is not a new interpretation by FTA. For example, in 2011, subsequent to a compliance review, we found a transit agency deficient when it made alterations to a pedestrian overpass and two sets of stairs but did not analyze the feasibility of making the station fully accessible, and did not make the station fully accessible. Further, the plain language of the ADA and DOT’s implementing regulations, federal appellate case law, and the Department of Justice’s (DOJ) interpretation of the ADA’s legislative history each dictate that costs and cost-disproportionality related to alterations may be considered by a public entity only under circumstances where a public entity is undertaking an alteration to a primary function area of the facility (e.g., train or bus platforms, passenger waiting areas, etc.) and therefore must also make alterations to the path of travel to make it accessible to the maximum extent feasible.1 1 See 42 U.S.C. § 12147(a); 49 CFR § 37.43(a), (c); DOJ Final Rule Implementing Title III of the ADA, 56 FR 35544, 35581 (July 26, 1991) (Title II of the ADA regarding public services and public transportation is identical in pertinent language to Title III of the ADA) (‘‘Costs are to be considered only when an alteration to an area containing a primary function triggers an additional requirement VerDate Sep<11>2014 18:34 Oct 02, 2015 Jkt 238001 Thus, where an element of a path of travel (such as a sidewalk, pedestrian ramp, passageway between platforms, staircase, escalator, etc.) in an existing facility is itself the subject of alteration—that is, not in connection with an alteration to a primary function area—and is therefore subject to 49 CFR 37.43(a)(1), the public entity is required to conduct an analysis of the technical feasibility of making the altered portion (i.e., the element of the path of travel) readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs, without regard to cost or costdisproportionality, and making the facility accessible to the maximum extent feasible. We have included this discussion in the subsection, ‘‘When the Altered Area is the Path of Travel.’’ Some commenters expressed concern that the language in this subsection was drafted broadly, and that an alteration to a sidewalk or parking lot could trigger the requirement to conduct an analysis regarding the feasibility of installing an elevator. We have amended the text to clarify that it is the element of the path of travel undergoing the alteration that must be made accessible. Only alterations to stairs or escalators would require an analysis of whether it is technically feasible to install a ramp, elevator, or other level-change method or device. A commenter expressed concern about multiple station entrances and an apparent requirement for each station entrance to be accessible. Specifically, where one entrance has an accessible path of travel, the commenter was concerned that alteration to escalators or stairs at other station entrances would require those station entrances be made accessible. We have added language citing Exception 1 to DOT Standard 206.4, providing that where an alteration is made to an entrance, and the building or facility has another accessible entrance that is on an accessible route, the altered entrance does not have to be accessible. Several commenters asserted the language in the proposed Circular would require agencies to add an elevator any time even minor repairs are made to stairs or escalators. We included the definition of ‘‘alteration’’ in both the proposed and final Circular. The definition of alteration specifically excludes normal maintenance, and we would consider minor repairs to be normal maintenance. We have provided to make the path of travel to the altered area accessible’’); see also Disabled in Action of Pa. v. Southeast Pa. Transp. Auth., 635 F.3d 87, 95 (3d Cir. 2011); Roberts v. Royal Atlantic Corp., 542 F.3d 363, 371–72 (2d Cir. 2008). PO 00000 Frm 00117 Fmt 4703 Sfmt 4703 examples of what would be considered an alteration to staircases in the final Circular. Finally, some commenters asserted that requiring an accessible vertical path of travel whenever alterations are made to staircases or escalators is a costly endeavor, and that some transit agencies may simply not make those alterations, thus allowing path of travel elements to fall out of a state of good repair. Further, commenters asserted that prioritizing accessibility over state of good repair would necessarily divert resources from state of good repair needs to elevator installations. FTA notes that accessibility and state of good repair are two critical responsibilities of transit agencies. In an arena of insufficient capital resources, priorities and choices must always be made. Accessibility is a civil right, and civil rights must be assured in all operating and capital decisions. State of good repair is also essential to the effective provision of service, particularly when the safety of all passengers—with and without disabilities—is dependent on the condition of infrastructure. It is the role of the transit agency management and governing board to balance both accessibility and state of good repair to ensure the civil rights and safety needs of all passengers and employees are met. On the subsection of ‘‘Maximum Extent Feasible,’’ a few commenters asserted we had redefined ‘‘technically infeasible’’ as physically impossible. That was not our intention; rather, we cited the definition of technical infeasibility found in section 106.5 of the DOT Standards. Given that we cited the definition without explanatory text, one commenter requested guidance on determinations for technical infeasibility or disproportionate cost. In response, we provided the necessary elements an entity must document to demonstrate technical infeasibility, which include a detailed project scope, coordination efforts where necessary and appropriate, a description of facility-specific conditions, and a stepby-step discussion on how the entity determined the facility could not be made accessible. Entities have provided this information to FTA in the past to demonstrate technical infeasibility. Several commenters were concerned that FTA appeared to expand the definition of ‘‘usability’’ by referencing a court case in the text of the proposed Circular. We have removed the case reference, and provided guidance regarding the concept of usability consistent with the legislative history of the ADA and federal case law. Importantly, the legislative history of the ADA states that ‘‘[u]sability should E:\FR\FM\05OCN1.SGM 05OCN1 mstockstill on DSK4VPTVN1PROD with NOTICES Federal Register / Vol. 80, No. 192 / Monday, October 5, 2015 / Notices be broadly defined to include renovations which affect the use of facility, and not simply changes which relate directly to access.’’ 2 Further, a facility or part of a facility does not have to be ‘‘unusable’’ for an alteration to affect usability; resurfacing a platform or a stairway are alterations that make the platform or stairway safer and easier to use.3 We have amended the subsection, ‘‘Disproportionate Costs’’ in response to comments. Many of the comments reflected a misunderstanding of the difference between 49 CFR 37.43(a)(1) and (a)(2), as discussed above, suggesting that FTA was adding a requirement for elevators when a stairway or escalator was repaired, as opposed to altered, and generally disagreeing that elevators are required irrespective of costs when a stairway or escalator is altered. In response, we cited the regulatory authority, reorganized the subsection, and retained the example of when the cost of adding an elevator would be deemed disproportionate and, therefore, not required. For the subsection, ‘‘Accessibility Improvements When Costs Are Disproportionate,’’ we refined the language and added more specific citations to the regulations and DOT Standards. One commenter expressed concern that the proposed language eliminated an agency’s ability to limit the scope of an alteration along the path of travel to discrete elements that could be evaluated independently. In response, we included the text of section 37.43(g), which prohibits public entities from circumventing the requirements for path of travel alterations by making a series of small alterations to the area served by a single path of travel. We also removed irrelevant regulatory citations, specifically section 37.43(h)(2) and (3) because they were unnecessary to the discussion. On platform and vehicle coordination, several commenters requested clarification and further guidance for specific situations. In response to comments, we determined platform and vehicle coordination would be better served in a discussion separate from the other common issues with station platforms, so we reorganized the chapter and provided a new section entitled, ‘‘Platform-Vehicle Coordination.’’ In this section, we described level boarding in plain language, listed 2 H. Rep. No. 485, 101st Cong., 2d Sess., Pt. 3, at 64 (1990), reprinted in 1990 U.S.C.C.A.N. 445, 487. 3 See, e.g., Kinney v. Yerusalim, 9 F.3d 1067 (3d Cir. 1993). VerDate Sep<11>2014 18:34 Oct 02, 2015 Jkt 238001 various ways to meet the Part 38 requirements, and provided photos of level boarding, mini-high platforms, bridge plates, and platform-based lifts. We received a number of comments related to rapid rail and light rail, specifically as to gaps and level boarding. In response, we added sections for rapid rail platforms and light rail platforms. The ‘‘Rapid Rail Platforms’’ section cites the gaps allowed by the regulation for new and retrofitted vehicles and new and key stations. The ‘‘Light Rail Platforms’’ section includes the gap requirements and provides a discussion related to platform heights and level boarding requirements in light rail systems. We have slightly reorganized the section, ‘‘Intercity, Commuter, and High-Speed Rail Platforms,’’ and provided further detail and clarification by adding regulatory citations and a link to DOT guidance. In addition, we added a subsection on ‘‘Platform Width of New or Altered Platforms,’’ which provides suggestions from DOT guidance. One commenter applauded the inclusion of Attachment 3–1, ‘‘Rail Station Checklist for New Construction and Alterations.’’ A few commenters expressed concern that the checklist could be misconstrued as requirements for the transportation facilities rather than a guidance tool to determine needs. Another commenter was concerned with the blurring of requirements and best practices in regards to the checklist. As we did throughout the final Circular, we connected each requirement to its relevant authority with citations to the regulation. Although there are requirements and standards contained in the checklist, use of the checklist itself is not a requirement. Accordingly, we amended the checklist title and stated that the checklist is ‘‘optional.’’ Other commenters stated the checklist included a number of erroneous citations and omitted several sections that are part of the DOT Standards. In response, we reviewed the citations to ensure accuracy and noted the checklist does not cover all of the DOT Standards. Another commenter asserted the accessible routes checklist was unusable without distances to compare with inaccessible routes. We did not provide distances because of local discretion and the variety of different contexts and possible situations. On signage at defined entrances, one commenter asked for clarification as to maps, and we specified signage must comply with DOT Standard 703.5. Another commenter pointed out that we used ‘‘area of refuge’’ and ‘‘area of rescue assistance’’ interchangeably, so we PO 00000 Frm 00118 Fmt 4703 Sfmt 4703 60231 revised the text for consistency. Further, the commenter asked for guidance on what signs at inaccessible exits should look like and where they need to be placed. Because of the great variety of possibilities, we do not provide more specific guidance other than citing the International Building Code, which the DOT Standards follow as to accessible means of egress. One commenter noted the proposed Circular did not include guidance to transit facility operators regarding facility illumination levels or illumination quality, and requested the final Circular include this information. Given the Access Board has not issued specific ambient lighting standards for compliance under the ADA, we decline to include guidance on this topic in the final Circular. E. Chapter 4—Vehicle Acquisition and Specifications Chapter 4 discusses accessibility requirements and considerations for acquiring buses, vans, and rail cars. We covered new, used, and remanufactured vehicles for various types of service, and then we provided considerations for each type. This chapter was initially titled, ‘‘Vehicle Acquisition,’’ but we revised the title to more accurately describe what is included in the chapter. We amended the organization and content of this chapter to align this chapter with the format of the subsequently published chapters and to respond to comments. For example, one commenter suggested the section on demand responsive systems follow the section on fixed route as it does in the regulations. In response, we changed the order of the sections. In the introduction to the chapter, we added a footnote that the Part 38 vehicle requirements closely follow the Access Board Guidelines set forth in 36 CFR 1192. One commenter suggested removing the word ‘‘covers’’ from the regulation subparts listed as redundant since they are requirements. We agreed and removed the word ‘‘covers’’ from the list of subparts, added text clarifying Part 38 contains technical design requirements, and clarified this chapter broadly covers crucial, often-overlooked accessibility elements. We also clarified that bus rapid transit (BRT) is covered under buses, and streetcars are covered under light rail operating on non-exclusive rights of way. One commenter suggested replacing usage of the term ‘‘acquire’’ with ‘‘purchase or lease’’ wherever applicable because using ‘‘acquire’’ can lead to the impression the requirements in the chapter only apply to the purchasing E:\FR\FM\05OCN1.SGM 05OCN1 mstockstill on DSK4VPTVN1PROD with NOTICES 60232 Federal Register / Vol. 80, No. 192 / Monday, October 5, 2015 / Notices rather than leasing of vehicles. We retained use of ‘‘acquire’’ because its plain language meaning includes both purchasing and leasing, as evidenced by Part 37. Another commenter suggested explaining the relationship of Part 38 to the Access Board’s regulations at 36 CFR part 1192. We added a footnote in the introductory paragraph of the chapter explaining that the vehicle requirements closely follow the Access Board guidelines. Another commenter suggested breaking Table 4.1 into two tables, rail and non-rail, for legibility. We retained one table because the ‘‘vehicle’’ column specifies ‘‘non-rail’’ or ‘‘rail car’’ and it is clearer as one table. We received several comments on bus and van acquisition. A commenter objected to the inclusion of demand responsive service and equivalent service in this chapter. In response, we moved the discussion of demand responsive service to Chapter 7. We did retain a brief discussion of demand responsive bus and van acquisition in this chapter. We did so to explain that inaccessible used vehicles may be acquired, so long as the equivalent service standards in section 37.77 are met. The commenter also objected to usage of the term ‘‘designated public transportation’’ in the chapter, and we removed the term because it was unnecessary, but we added it to Chapter 7 when defining ‘‘demand responsive’’ and ‘‘fixed route.’’ We received several comments on the considerations for acquiring accessible buses and vans. On the topic of lifts, one commenter recommended separating from the discussion of design load weight the mention of safety factor, which is based on the ultimate strength of the material, because it was awkward. In response, we edited the discussion on lifts so the minimum design load and minimum safety factor language is easier to understand. On the topic of securement systems, several commenters objected to conducting tests or the use of ‘‘independent laboratory test results’’ for securement-system design specifications because they are rarely available, difficult for a transit agency to pursue, and not required by regulation. In response, we changed the language to an FTA recommendation that design specifications be in ‘‘compliance with appropriate industry standards.’’ We also added the recommendation to consult with other agencies that use the same securement system under consideration. Further, we added language on the purpose of securement systems, including that the securement system is not intended to function as an VerDate Sep<11>2014 18:34 Oct 02, 2015 Jkt 238001 automotive safety device. Another commenter pointed out we included a reference to the ‘‘versatility’’ of a securement system for the ‘‘Mobility Aids’’ bullet point, which does not appear in the regulation. In response, we removed the reference to versatility. Under the bullet point for ‘‘Orientation,’’ a commenter suggested replacing ‘‘backward’’ with ‘‘rearward’’ because it is more technically accurate and appropriate. We adopted this suggestion. Under the bullet point for ‘‘Seat belt and shoulder harness,’’ a commenter suggested changes to the bullet point. We adopted these changes and revised ‘‘seat belt’’ to ‘‘lap belt’’ to be more descriptive. Another commenter questioned our securement system example of short straps and ‘‘S’’ hooks and suggested using the example of a ‘‘strap-type tie-down’’ system. We adopted this suggestion in an effort to avoid confusion from the proposed language. The commenter also suggested replacing the reference to ‘‘connecting loops’’ with ‘‘tether straps,’’ a more recognizable term—we made the change based on this comment. We received several comments on the various rail car sections (rapid rail, light rail, and commuter rail). One commenter noted the omission of restroom accessibility requirements. In discussing the standards for accessible vehicles, we chose to highlight common issue areas, which includes doorwayplatform gaps, boarding devices, priority seating signs, and between-car barriers. Several commenters asserted that level boarding is not always practical or feasible. Based on these comments, we determined boarding devices are an area of particular interest and included a subsection on them under considerations for light rail and commuter rail vehicles. We explained that where level boarding is not required or where exceptions to level boarding are permitted, various devices can be used to board and alight wheelchair users, including car-borne lifts, ramps, bridge plates, mini-high platforms, and wayside lifts. On the topic of priority seating signs, one commenter stated the requirement does not account for situations where priority seating and wheelchair seating occupy the same space or where the first forward-facing seat is up a stair at the rear of a bus. In response, we clarified that aisle-facing seats may be designated and signed as priority seats, as long as the first forward-facing seats are also designated and signed as priority seating. One commenter noted it supplements priority seating signage with automated audible and visual messages that ask customers to leave PO 00000 Frm 00119 Fmt 4703 Sfmt 4703 priority seats unoccupied for seniors and persons with disabilities. In line with this comment, we clarified the language an agency places on its signs does not need to match exactly the text in section 38.55(a), but instead capture the general requirement. On the topic of between-car barriers, one commenter suggested adding text recognizing that track and tunnel geometry may prohibit the use of vehicle-borne between-car barriers. To clarify the discussion on between-car barriers, we revised and explained their purpose and the distinction between between-car barriers and detectable warnings. The commenter also suggested FTA include more information on design and standards for between-car barriers. We enhanced the discussion related to between-car barriers in light rail systems and added Figure 4–7 to illustrate various betweencar barrier options. Notably, FTA issued a Dear Colleague letter on September 15, 2015, related to between-car barriers on light rail systems, available here: http:// www.fta.dot.gov/newsroom/12910_ 16573.html. Chapter 4 uses multiple figures for illustration, and we received several comments on those figures. For Figure 4–1, which depicts the accessibility requirements for a bus that is 22 feet or longer, one commenter suggested labeling the clear path to or from securement areas. We revised the figure and added label ‘‘E’’ to denote the clear path to and from securement areas. For Figure 4–2, which depicts the exterior components of an accessible bus, a few commenters pointed out that the international symbol of accessibility, while helpful, is not required on buses as it is on rail cars. In response, we replaced the photograph with a diagram that does not include the international symbol of accessibility. Another commenter suggested adding an arrow pointing out the transition from ground to ramp. The diagram replacing the photograph indicates the transition from ground to ramp without the need for an arrow. For Figure 4–3, a photograph of a deployed lift, one commenter expressed difficulty in seeing what the arrows pointed to and suggested adding a label for ‘‘Transition from ground to platform.’’ In response, used a different photograph, and provided a label for that element and made the existing labels more accurate. We also lightened the background elements to draw attention to specific lift elements. For Figure 4–4, which depicts a securement and passenger restraint system, several commenters suggested removing unmarked angles from the figure; we agree the angles were unnecessary and E:\FR\FM\05OCN1.SGM 05OCN1 mstockstill on DSK4VPTVN1PROD with NOTICES Federal Register / Vol. 80, No. 192 / Monday, October 5, 2015 / Notices we removed them. Another commenter suggested the front tie-down in the diagram be shown attaching slightly higher so it is at the frame junction instead of at the footrest support. We edited the figure to incorporate this suggestion. We received several comments related to ensuring vehicles are compliant. One commenter suggested the reference to ‘‘detailed specifications’’ be changed to ‘‘required specifications.’’ We made this change because the specifications are required. A few commenters suggested more specificity with the requirements for measurements and tolerances because the language was too generalized. We added more specific measurements and tolerances where needed; for example, we specified that securement straps have required minimum load tolerances of 5,000 pounds rather than stating the straps have required minimum load tolerances. Another commenter pointed out the phrase, ‘‘Sample Documentation of Test Results’’ was present without any explanation or accompanying text. We removed the text because its inclusion was in error. On the topic of obtaining public input, one commenter suggested using an alternative phrase to, ‘‘full-size sample.’’ We revised the language to, ‘‘partial, full-scale mockups’’ to be more specific and avoid confusion. Another commenter suggested that in addition to public input, transit agencies involve their board members and staff. This may be an important process for a transit agency to have, but it is unrelated to the public input section and we did not include it in the final Circular. A couple of commenters disagreed with the ramp example used to illustrate that a transit agency may exceed the minimum requirements. They disagreed because ramps are a complex topic which is under continued discussion and study at the Access Board. In response, we used a simpler example of exceeding the minimum requirements: a transit agency acquiring buses with three securement locations when the minimum requirement is two securement locations. We received numerous comments on the checklist for buses and vans. Multiple commenters expressed support for the inclusion of checklists and found this checklist helpful. In line with our efforts to distinguish between requirements and good practices, we renamed the checklist to: ‘‘Optional Vehicle Acquisition Checklist of Buses and Vans.’’ A few commenters asked for a similar checklist for rail cars or other vehicle types, but we declined to include one because the bus and van VerDate Sep<11>2014 18:34 Oct 02, 2015 Jkt 238001 60233 checklist is designed to be only a sample; transit agencies may create their own checklists for buses, vans, or rail cars to ensure compliance with the regulations. In the section on securement areas, several commenters took issue with the mention of common wheelchairs as being incorrect or inappropriate, given the recent change in the regulation. We added a note clarifying the dimensions and weight of a common wheelchair still represent the minimum requirements for compliance in accordance with 49 CFR part 38. A few commenters also asked for an explanation of what ‘‘average dexterity’’ means. We declined to provide a standard or definition for this term and expect readers to use a plain language meaning. Another commenter pointed out the regulations require ‘‘at least’’ one or two securement locations and not only one or two, so we corrected the text to reflect this. F. Chapter 5—Equivalent Facilitation Chapter 5 discusses equivalent facilitation, including the requirements for seeking a determination of equivalent facilitation, and provides considerations and suggested practices when submitting requests. This final Chapter remains largely unchanged from the proposed Chapter except for some reorganization and edits made for clarity and responsiveness to comments. Several commenters expressed support for inclusion of this chapter, and in particular the discussion of requests for and documentation of equivalent facilitation. One commenter asked for an explanation regarding the equivalent facilitation determination process. The commenter believed it was inconsistent to state that a determination pertains only to the specific situation for which the determination is made (and that each entity must submit its own request), yet the FTA Administrator is permitted to make a determination for a class of situations concerning facilities. In response, FTA notes the specific situation for which a determination of equivalent facilitation is made may be a class of situations, and where the Administrator makes such a determination, the determination will explicitly state it applies to a class of situations, in which case other transit agencies would not be required to submit new requests for equivalent facilitation for the same situation. We have added language to clarify this. Several commenters sought clarification on the type of information or materials that must be submitted to FTA in order to support a request for equivalent facilitation. A few commenters asked to whom these submissions must be sent. We added language specifying that the submissions are to be addressed to the FTA Administrator, and we request a copy be sent to the FTA Office of Civil Rights. A few commenters were concerned about costs of testing, particularly with mockups. We listed a mockup as an example of part of the evidence that may be presented with the submission, but we do not expect requestors to send mockups to FTA. Detailed information such as drawings, data, photographs, and videos are valuable forms of documentation and we encourage their inclusion in submission materials. One commenter expressed concern with the ‘‘Dos and Don’ts’’ section of this chapter, asserting we conflated requirements with recommendations, so we added ‘‘suggested’’ to the heading to make clear the included items are suggestions and not requirements. G. Chapter 6—Fixed Route Service Chapter 6 discusses the DOT ADA regulations that apply specifically to fixed route service, including alternative transportation when bus lifts are inoperable, deployment of lifts at bus stops, priority seating and the securement area, adequate vehicle boarding and disembarking time, and stop announcements and route identification. The final chapter remains substantively similar to the proposed chapter. However, we moved several sections that applied across modes to other chapters to minimize repetition, and also made several changes based on specific comments. There were a few comments regarding alternative transportation requirements when a fixed route vehicle is unavailable because of an inoperable lift. These commenters noted the proposed Circular stated, ‘‘agencies must provide the alternative transportation to waiting riders within 30 minutes’’ when a bus lift is inoperable, but implied the regulations were more flexible. In response, we substituted language with a direct quote from Appendix D, which provides examples for providing alternative transportation. We also added text explaining that with regard to rampequipped buses, FTA finds local policies to require drivers to manually deploy ramps instead of arranging alternative transportation acceptable because Part 38 does not require ramps to have a mechanical deployment feature. We merged the sections regarding alternative transportation when the driver knows the lift is not PO 00000 Frm 00120 Fmt 4703 Sfmt 4703 E:\FR\FM\05OCN1.SGM 05OCN1 mstockstill on DSK4VPTVN1PROD with NOTICES 60234 Federal Register / Vol. 80, No. 192 / Monday, October 5, 2015 / Notices working and when lifts do not deploy, because the requirements are the same for both. One commenter, discussing when a bus may not be available to riders because it is full, noted the description of a ‘‘full’’ bus should also include a bus where securement areas are already occupied by riders whom the driver has asked to move, but are unwilling to do so. In response, we added this point to the description of ‘‘full.’’ Some commenters asked what a transit agency must do if an individual is unable to board a bus because all of the wheelchair positions were full. We added text encouraging agencies to instruct drivers to explain the policy to waiting riders, so the riders do not believe they are being passed by. One commenter praised the text regarding deployment of lifts and ramps, specifically the suggestion that when a driver cannot deploy a lift or ramp at a specific location, the preferred solution is to move the bus slightly. This suggestion is now mirrored by 49 CFR part 37, Appendix E, Example 4, and we incorporated the example into the final Circular. Another commenter requested examples for what operators can do when passengers seek to disembark at a stop without accessible pathways. Example 4 also addresses this issue. There were many comments regarding priority seating. Commenters sought clarification regarding when bus drivers can ask individuals, including persons with disabilities or seniors, to move. We edited the text to make clear when the operator must ask individuals to move. We also explained that while operators must ask individuals to move, they are not required to enforce the request and force an individual to vacate the seat. However, we highlighted that agencies may adopt a ‘‘mandatory-move’’ policy that requires riders to vacate priority seating and securement areas upon request, and encouraged agencies with these policies to inform all riders and post signage regarding these policies. Some of the priority seating comments noted the proposed chapters did not address situations in which the priority seats were also fold-down seats in the securement area. We edited the text to encourage transit agencies to develop local policies regarding whom drivers may ask to move from priority seats if an individual using a wheelchair needs the securement location. One commenter sought clarification as to whether operators are required to proactively assist seniors or persons with disabilities or whether the customers need to ask for assistance, citing concern for individuals without VerDate Sep<11>2014 18:34 Oct 02, 2015 Jkt 238001 visible disabilities. We clarified that while the regulations do not require operators to proactively lead riders with disabilities or seniors to the priority seating area, we encourage local agencies to develop policies for drivers regarding serving riders who need assistance and not just those with apparent disabilities. One commenter provided an example of stroller and luggage policies on their vehicles. Consequently, we added a hyperlink to an example of a local policy governing the use of strollers in the securement space on its fixed route buses. Several commenters expressed concerns about adequate boarding time. Some of these commenters noted that agencies should institute pre-boarding policies for individuals with disabilities who need to use the ramp or lift, to ensure that wheeled mobility device users were not denied service as a result of overcrowding. We maintained the text stating transit agencies may develop policies to allow riders with wheeled mobility devices to board first, but we added that transit agencies do not need to, and are not advised to, compel individuals on a vehicle to leave the vehicle to allow individuals with a wheeled mobility device to board. There were also comments related to ensuring individuals with disabilities are safely seated on a bus or rail vehicle before it moves, and conversely, commenters stated the discussion of this issue seems to assume individuals with disabilities require additional time to sit. Another commenter noted an operator may not always know that a rider has a disability. We edited the text to encourage transit agencies to develop wait-time standards or other procedures and instruct personnel to pay attention to riders who may need extra time, including those who use wheelchairs and others who may need extra time boarding or disembarking, rather than allowing time for riders with disabilities to be safely seated before moving the vehicle. We also added a suggestion for rail vehicles, where it is more difficult to have visual contact with riders: Instead of having drivers and conductors assess on their own how long it takes for a rider to board, transit agencies can establish local wait-time policies to give riders sufficient time to sit or situate their mobility device before the vehicle moves. There were a number of comments regarding stop announcements and route identification. Many commenters echoed the general comment that the proposed Circular instituted requirements for stop announcements not included in the regulations, specifically with announcing transfer PO 00000 Frm 00121 Fmt 4703 Sfmt 4703 route numbers and the ‘‘ability to transfer’’ at transit stops. We addressed these comments by making clear what is required and what is suggested and removing the use of the term ‘‘should.’’ Additionally, we removed the sentence suggesting route numbers be announced, and we specified that it is a suggestion, but not a requirement, to announce the first and last stops in which two routes intersect. Another commenter noted asking an agency employee for a stop announcement is not always possible. We added language encouraging riders to approach an agency employee ‘‘when possible’’ to request a stop announcement when boarding the vehicle. We also clarified that while the DOT ADA regulations have certain requirements for stop announcements, the selection of which locations are the major intersections and major destinations to be announced, or what are sufficient intervals to announce, are deliberately left to the local planning process. A few commenters also noted a transit agency may not know about all private entities that intersect with their routes and, therefore, it may be difficult to announce these entities during stop announcements. In response, we clarified that the requirement to announce transfer points with other fixed routes does not mean an agency must announce the other routes, lines, or transportation services that its stop shares—only that it announce the stop itself (e.g., ‘‘State Street’’ or ‘‘Union Station’’). One commenter noted that if an automated stop announcement system does not work, the operator must make the announcement. We added text stating the operator must make stop announcements if the automated announcement system does not work. Another commenter noted it would be challenging to test speaker volume in the field. In response, we note the suggestion to test speaker volume in the field is one of several suggestions provided, and it is not a requirement. We also added the DOT Standards requirement providing that where public address systems convey audible information on a vehicle to the public, the same or equivalent information must be provided in visual format, often in the form of signage displaying the route and direction of the vehicle. We clarified that transit agencies must sufficiently monitor drivers and the effectiveness of the announcement equipment to ensure compliance with the regulatory stop announcement requirements. There were also several comments about the sample data collection forms, stating FTA was E:\FR\FM\05OCN1.SGM 05OCN1 Federal Register / Vol. 80, No. 192 / Monday, October 5, 2015 / Notices mstockstill on DSK4VPTVN1PROD with NOTICES presenting this as a ‘‘best example’’ when it was only one example, and it could be interpreted as required. The form included in the proposed Circular was a resource and only one example of how to monitor stop announcements. A local agency, at its discretion, may choose to use it. In response to comments, we added text noting FTA recognizes there are many different ways of collecting data and monitoring compliance. One commenter asked us to clarify a sentence regarding rail station signage visibility requirements. We reworded this sentence to be clearer and to include regulatory text. H. Chapter 7—Demand Responsive Service Chapter 7 discusses characteristics of demand responsive service; the equivalent service standard; and types of demand responsive service, including dial-a-ride, taxi subsidy service, vanpools, and route deviation service; and offers suggestions for monitoring demand responsive service. We have reorganized the chapter and made edits in response to comments. We received multiple comments on equivalent service. Several commenters expressed concern that the concepts of demand responsive service were being mixed with equivalent service and vehicle acquisition. In response, we reorganized this chapter to better explain the service requirements for demand responsive systems. First, we discussed characteristics of demand responsive systems. Next, we mentioned vehicle acquisition, which the regulations directly tie to demand responsive service requirements. Then, we discussed equivalent service, followed by coverage of types of demand responsive services. We revised the equivalent service discussion to specify that the equivalent service standard does not apply when a vehicle fleet is fully accessible, and we clarified the applicability of the section 37.5 nondiscrimination requirements to all demand responsive services. A commenter expressed concern with a statement in the proposed chapter about equivalent service being ‘‘the same’’ implies ‘‘the same or better,’’ asserting it might result in preferential treatment for individuals with disabilities. In response, we emphasized in the final Circular that providing a higher level of service to individuals with disabilities would be a local decision, but equivalent service remains a regulatory requirement. That is, service must be at least ‘‘equivalent,’’ though it may be better. When discussing restrictions or priorities VerDate Sep<11>2014 18:34 Oct 02, 2015 Jkt 238001 based on trip purpose, a commenter suggested not using the phrase ‘‘regardless of ability,’’ so we reworded the concept. Following the equivalent service discussion, each type of demand responsive service is discussed with equivalency considerations for the respective service. For taxi subsidy service, we received comments expressing concern about the language on equivalency and monitoring, with one commenter suggesting it would effectively end all taxi subsidy service across the nation and hurt customers with disabilities. We disagree with this characterization. The entity administering a taxi subsidy program has the responsibility to ensure equivalent service, and can do this through a number of different methods as described in the final Circular. We recognize taxi service is generally subject to DOJ’s Title III jurisdiction. Regarding route deviation service, we received comments requesting further clarification about the service requirements. We included additional discussion on service delivery options and inserted Table 7.1, Service Delivery Options, to highlight the service options in a quick-reference table format. One commenter suggested modifying Figure 7–1, which depicts route deviation service, to show a requested pickup or drop-off location with a dotted line, and we revised the figure to incorporate the suggestion. Several commenters had questions related to the subsection, ‘‘Combining Limited Deviation and Demand Responsive Services to Meet Complementary Paratransit Requirements.’’ In response to comments, we removed the discussion and added other subsections that clarify ways an agency can meet ADA requirements. We emphasized three route deviation-related service options, including comingling complementary paratransit and fixed route service on the same vehicle, and included a link to an FTA letter further explaining service options. Regarding other types of demand responsive service, we noted for innovative, emerging forms of transportation there may be applicable ADA requirements that may not be immediately clear. We added a suggestion to contact the FTA Office of Civil Rights for guidance on identifying applicable ADA requirements. We received a few comments on monitoring as it relates to demand responsive systems, and we incorporated these into the suggestions for monitoring service. One commenter objected to what it perceived as additional requirements to monitor and PO 00000 Frm 00122 Fmt 4703 Sfmt 4703 60235 report on subrecipients. We added language explaining that agencies must monitor their service to confirm the service is being delivered consistent with the ADA requirements, and that FTA does not dictate the specifics of an agency’s monitoring efforts. Another commenter asked if there were options for monitoring equivalency that were allowed or accepted other than the approaches in Table 7.2, ‘‘Suggested Approaches for Determining Equivalency for Each Service Requirement.’’ We note the approaches in Table 7.2 are suggestions and there are other ways to fulfill monitoring obligations. Another commenter suggested adding information about what it means for online service to be accessible. We added a reference to Chapter 2 in the section leading up to the table because Chapter 2 discusses accessible information in greater detail. Because the items in Table 7.2 focus on determining equivalency, in the final Circular we added additional suggestions for monitoring specific service types: Comingled dial-a-ride and complementary paratransit services, taxi subsidy services, and demand responsive route deviation services. Finally, we received a couple of comments on certification. One commenter requested FTA clarify the extent to which a state administering agency has a duty to confirm the statements made by grant subrecipients in connection with the certification process. In response, we added language clarifying that state administering agencies need to have review procedures in place to monitor subrecipients’ compliance with certification requirements. Another commenter noted the section contained confusing cross-references and suggested we reexamine it for accuracy. We addressed this by using Appendix D language and a bulleted list with references to specific FTA program Circulars. The commenter also questioned why Attachment 7–1 was labeled as a sample certification if it was the same as the one found in Appendix C to Part 37. In response, in Attachment 7–1 we removed the word ‘‘Sample’’ from the title and removed the date line to mirror the Appendix C Certification of Equivalent Service. I. Chapter 8—Complementary Paratransit Service Chapter 8 addresses complementary paratransit service delivery, including topics such as service criteria, types of service options, capacity constraints, and subscription and premium service. This chapter was reformatted and reorganized from the proposed chapter E:\FR\FM\05OCN1.SGM 05OCN1 mstockstill on DSK4VPTVN1PROD with NOTICES 60236 Federal Register / Vol. 80, No. 192 / Monday, October 5, 2015 / Notices to include new sections with regulatory text, and we made several changes and clarifications in response to comments. One commenter noted paratransit is not supposed to be a guarantee of ‘‘special’’ or ‘‘extra’’ service. We emphasized that any services beyond the minimum requirements are optional and local matters. We added a reference and link to FTA’s existing bulletin ‘‘Premium Charges for Paratransit Services’’ to highlight further that premium services are not required, and if transit agencies provide premium services, they are permitted to charge an additional fee. A few commenters questioned why commuter service and intercity rail were not included in the list of entities excluded from complementary paratransit. In the final Circular we added the definitions for commuter rail and bus and intercity rail. These commenters also suggested the Circular include more explanation as to when a route called a ‘‘commuter bus’’ route may be required to provide paratransit service, and they suggested including FTA findings regarding this issue. We added a more thorough explanation, cross-referencing to Chapter 6, explaining why a case-by-case assessment by the transit agency is needed to determine whether a particular route meets the definition of commuter bus. We also provided a link to a complaint decision letter regarding the elements FTA examined to determine whether the service in question in the complaint was in fact commuter service. We received a number of comments regarding origin-to-destination service. Most of these comments questioned FTA’s requirement for door-to-door service, in at least some cases, which they asserted was related to the thenpending rulemaking on reasonable modification and not required by the DOT regulations. Commenters asserted the proposed Circular was essentially requiring door-to-door service and expanding service beyond the standard curb-to-curb service many transit agencies provide. Commenters also expressed concerns about the safety issues of leaving a vehicle unattended for a long period of time to provide door-to-door service to an individual. As DOT has explained, the requirement for door-to-door service was not contingent upon the reasonable modification rulemaking, but rather rooted in § 37.129. However, this argument is moot since DOT issued its final rule on reasonable modification subsequent to publication of Amendment 2 of the proposed Circular. The final rule, incorporated into Part 37, VerDate Sep<11>2014 18:34 Oct 02, 2015 Jkt 238001 includes a definition of origin-todestination consistent with the longstanding requirement (See 80 FR 13253, Mar. 13, 2015). We edited this section to incorporate the regulatory text, preamble text from the final rule on reasonable modification, and relevant examples from the new Appendix E to Part 37. We incorporated several Appendix E examples verbatim that address origin-to-destination issues, including a driver leaving a vehicle unattended. A few commenters requested clarification on the responsibilities of the transit agency to provide hand-tohand attended transfers to riders on paratransit. We explained that if an agency requires riders to transfer between two vehicles to complete the complementary paratransit trip within that agency’s jurisdiction, then the agency is required to have an employee (driver or other individual) wait with any riders who cannot be left unattended. But, we added specific language emphasizing that the requirement for attended transfers does not apply when an agency is dropping off a rider to be picked up by another provider to be taken outside the agency’s jurisdiction. One commenter argued it is not accurate to state that ‘‘double feeder’’ service, a service where complementary paratransit is used to provide feeder service to and from the fixed route on both ends of the trip, is typically not realistic. We revised the text and added Appendix D text for clarification, which states ‘‘the transit provider should consider carefully whether such a ‘double feeder’ system, while permissible, is truly workable in its system.’’ A few commenters suggested clarifications to the figures regarding paratransit service areas, Figures 8–1 and 8–2, depicting bus and rail service areas, such as clarifying the terms in the figures and making the graphics easier to read and less blurry. We made these changes. There were a few comments regarding access to restricted properties. One commenter requested clarification on what to do in the case of a gated community. Another commenter questioned what recourse transit agencies and passengers have when a commercial facility limits access to paratransit vehicles. In response to these comments, we added a section entitled, ‘‘Access to Private or Restricted Properties’’ and added an Appendix E example from Part 37 that discusses transit agencies’ obligations with respect to service to restricted properties. Another commenter stated passengers PO 00000 Frm 00123 Fmt 4703 Sfmt 4703 should be required to arrange access to locked communities or private property if they want to be picked up or dropped off in a restricted area. The Appendix E example specifically notes the possibility of the transit agency working with the passenger to get permission of the of the property owner to permit access for the paratransit vehicle. There were many comments regarding negotiating trip times with riders, mostly regarding drop-off windows and next day scheduling. Many commenters expressed that paratransit scheduling to drop-off time is not required, while one commenter supported scheduling to drop-off times. We revised the text to explain that a true negotiation considers the rider’s time constraints. While some trips have inherent flexibility (e.g., shopping or recreation), other trips have constraints with respect to when they can begin (e.g., not before the end of the individual’s workday or not until after an appointment is over). A discussion of the rider’s need to arrive on time for an appointment will sometimes be part of the negotiation between the transit agency and the rider during the trip scheduling process. We do not prescribe specific scheduling practices an agency must adopt. Instead, we state simply that if trip reservation procedures and subsequent poor service performance cause riders to arrive late at appointments and riders are discouraged from using the service as a result, this would constitute a prohibited capacity constraint. Commenters expressed a related concern regarding a statement that transit agencies should not drop off riders before a facility opens. We revised the text to state more generally that FTA encourages transit agencies to establish policies to drop off riders no more than 30 minutes before appointment times and no later than the start of appointment times, recognizing that it is the customer’s responsibility to know when a facility opens. Several commenters requested clarification on next-day scheduling as to what ‘‘no later than one day ahead’’ means. One commenter suggested changing the text to ‘‘on the day before,’’ which we did, to make clear that scheduling can be done the day before, and not only 24 hours before. A few commenters asked for clarification as to how late ‘‘the day before’’ goes to, specifically for transit agencies that operate service past midnight. We maintained the text stating transit agencies with service past midnight must allow riders to schedule during normal business hours on the day before the trip, including for a trip that would begin after midnight. And we added E:\FR\FM\05OCN1.SGM 05OCN1 mstockstill on DSK4VPTVN1PROD with NOTICES Federal Register / Vol. 80, No. 192 / Monday, October 5, 2015 / Notices language specifying ‘‘normal business hours’’ means ‘‘during administrative office hours’’ and not necessarily during all hours of transit operations. There was also a comment regarding changing negotiated trip times. The commenter questioned to what extent leaving a voicemail is adequate to notify the passenger of a change in pickup time. We clarified that when voicemail is used for trip reservations, if an agency needs to negotiate the pickup time or window, they must contact the rider and conduct a negotiation. Any renegotiation situation is treated similarly, such that if the transit agency calls the rider, and the rider cannot be reached, the transit agency must provide the trip at the time previously negotiated. We also expanded the discussion on how call-backs relate to trip negotiation requirements. We added clarifications to the section on negotiating trip times. Transit agencies are permitted to establish a reasonable window around the negotiated pickup time, during which the vehicle is considered ‘‘on time.’’ We explained that FTA considers pickup windows longer than 30 minutes to be unacceptable, as they cause unreasonably long wait times for service. We also included examples to describe the 30 minute window. A few comments regarding ‘‘no strand’’ policies sought clarification on the sentence that suggested providing a return trip, ‘‘even if later than the original schedule time,’’ and requested FTA to state the ‘‘no strand’’ policies are optional. We edited the sentence to specify these policies are optional and that the return trip will typically be within regular service hours. We received several comments on paratransit fares. A few commenters were concerned about the fare rules regarding how to choose between the minimum alternative base fares for paratransit when there is more than one fixed route option. We clarified by adding Appendix D language specifying that the agency chooses the mode or route that the typical fixed route user would use. A few commenters questioned whether transit agencies using distance based fares on fixed route are required to vary paratransit fares as well. We clarified that transit agencies are not required to use distance based fares on paratransit, but must set the fares at no more than double the lowest full-price fixed route fare for the same trip. One commenter requested the citation for the regulatory requirement to provide free paratransit trips in situations with free fare zones. We provided the relevant regulatory citation. Another commenter suggested VerDate Sep<11>2014 18:34 Oct 02, 2015 Jkt 238001 it should be pointed out that agency trips, or fares negotiated with social service agencies or other organizations, can be more than double the fixed route fare. We made this change. We also added text stating that FTA finds monthly passes on fixed route are considered discounts, and, therefore, cannot be used to calculate the maximum paratransit fare, which is capped at double the full-price fixed route fare. We received a number of comments regarding capacity constraints. A commenter requested clarification on the meaning of considering ‘‘two closely spaced trips by the same rider so they do not overlap’’ during scheduling. We added an example of when this occurs to better explain that scenario. Another commenter requested clarification that it is not a waiting list, and, therefore, not a capacity constraint, to tell riders they will provide the trip, but then state the transit agency will call back before ‘‘X’’ p.m. to give a precise time to the rider. We added language to more clearly explain what is and what is not a waiting list. We also added text specifying that as long as the call-taker accepts the trip request and confirms the requested time with the rider, this is not a waiting list. Within the topic of capacity constraints, there were many comments on untimely service. On the topic of pickup windows, one commenter expressed it is important to point out that if the local agency has instituted a 5-minute waiting period for paratransit pickups, the 5 minute wait cannot begin until the start of the pickup window. The text in the final Circular states this explicitly. In addition, there were several comments on assessing on-time performance. One commenter requested a clarification of what ‘‘on-time’’ means, and whether this includes only the 30 minute window or also early pickups. We edited the language to express that on-time is only within the 30-minute window, but service standards may evaluate on-time pickups and early pickups together by setting a goal of ‘‘X’’ percent of pickups will be on-time or early. Another commenter requested we include a standard for ‘‘very early pickups’’ in the Circular. While we did not add a specific standard, we provided examples of service standards some agencies have instituted for very early pickups. There were several comments on trip denials and missed trips. Regarding trip denials, one commenter expressed that when a trip is actually made, it cannot be counted as a denial, referring to DOT’s September 2011 amendments to the regulation. We agree with the PO 00000 Frm 00124 Fmt 4703 Sfmt 4703 60237 commenter, and clarified the language and linked to the preamble to the amendments. Regarding missed trips, we added more clarification on what constitutes a missed trip and provided examples. One commenter suggested it would be a good practice for dispatchers to ask drivers to describe the pickup location and document the description in case a no-show is later questioned. We added the requested language. Another commenter requested substantiation for stating that a transit agency with a high rate of missed trips may not be able to arrive on time, possibly indicating the need to add capacity. We substantiated this statement based on complementary paratransit reviews completed by FTA’s Office of Civil Rights. A few commenters stated that untimely drop-offs and poor telephone performance are not mentioned in the regulations, and are therefore only good practices and should be presented as such. We clarified why we consider these actions capacity constraints under the regulations, and, therefore, a requirement to ensure a transit agency is not allowing these situations to occur, and tied it to the relevant regulation at section 37.131(f)(3)(i). There were many comments about poor telephone performance, including call wait times and busy signals. One commenter requested we more directly address long hold times, and we clarified this section to focus more clearly on long hold times. A couple of commenters stated it is unclear what specific telephone hold times are required without actual numbers of minutes or percentages, and recommended FTA adopt a best practice standard for maximum hold times of two minutes. We did not set absolute maximum hold times; however, we added optional good practices of setting certain thresholds, and provided examples. For example, ‘‘an optional good practice is to define a minimum percentage (e.g., X percent) of calls with hold times shorter than a specific threshold (e.g., two minutes) and a second (higher) percentage (e.g., Y percent) of calls with hold times shorter than a longer threshold (e.g., five minutes).’’ We also added optional good practices for measuring averages over hourly periods. One commenter requested the Circular state that a rider should never encounter a busy signal, other than in rare emergency situations. FTA did not state explicitly that a rider should never encounter a busy signal, but we added recommendations about using telephone systems with sufficient capacity to handle all incoming calls, providing suggestions of how to avoid E:\FR\FM\05OCN1.SGM 05OCN1 mstockstill on DSK4VPTVN1PROD with NOTICES 60238 Federal Register / Vol. 80, No. 192 / Monday, October 5, 2015 / Notices busy signals, and stating that excessive wait times and hold times would constitute a capacity constraint. One commenter asked why steering eligible individuals to different services would be considered discouraging the use of complementary paratransit if the other service might serve the individual better. We deleted references to ‘‘steering’’ in the document and instead added language to clarify that while transit agencies may not discourage use of ADA complementary paratransit, which is a capacity constraint, it is a good practice to make people aware of their transportation options so they can make informed decisions. Making sure people are aware of their transportation options so that they can make informed decisions is very different from discouraging paratransit use. We added text stating FTA encourages agencies to coordinate their services with other services available to individuals with disabilities. Numerous commenters suggested that as long as an agency doesn’t have capacity constraints, there should not be a limit on subscription service to 50 percent of an agency’s paratransit service. While this language was included in the proposed Circular, in the final Circular we clarified the language, and added language stating FTA encourages transit agencies to maximize use of subscription service as long as there are no capacity constraints. One commenter noted will-call trips should be premium services, and asked for clarification. We edited the text to reflect that will-call trips are premium services and added them to the list of premium service provided in the, ‘‘Exceeding Minimum Requirements (Premium Service)’’ section. We also clarified in the earlier sections that willcall trips may be restricted by trip purpose and transit agencies may charge higher fares for these trips. Regarding complementary paratransit plans, a few commenters requested FTA provide reasons for requiring a plan when a system is not in compliance, and why there is no requirement for compliance with paratransit on the first day of a fixed route service. We edited the text in line with the regulations and FTA policy requiring implementation of complementary paratransit immediately upon introduction of a fixed route service, and not over time. Additionally, we added the regulatory support for requiring a complementary paratransit plan when a transit system is not in compliance with its paratransit obligations. A commenter suggested the section on public participation add a ‘‘good practice,’’ stating when a transit agency VerDate Sep<11>2014 18:34 Oct 02, 2015 Jkt 238001 age children must be accompanied by an adult based on the age a child is able to use fixed route independently. This age requirement must be uniform across fixed route and paratransit. We also clarified that fare policies alone, such as providing that children under a certain age ride free, or children accompanied by an adult ride free, do not set a requirement for a child to be accompanied by an adult, and, therefore, do not extend to paratransit policies. One commenter wondered why a discussion of individuals with psychiatric disabilities who may not be able to travel in unfamiliar areas would be found paratransit eligible under two J. Chapter 9—ADA Paratransit Eligibility different categories of eligibility. We Chapter 9 discusses ADA paratransit clarified that these individuals may be eligibility standards, the paratransit eligible for multiple reasons. eligibility process, the types of One commenter stated that eligibility eligibility, recertification, and appeals based on current functional ability may processes, no-show suspensions, and lead to confusion about impairmentissues involving personal care related conditions that vary from time to attendants and visitors. time. We added language stating it Several commenters asked for would be inappropriate to deny clarification on the dilemma between eligibility to someone with a variable having mobility device weight disability if the assessment happened to restrictions and paratransit eligibility. take place on a ‘‘good day,’’ and transit We clarified that ADA paratransit agencies should consider that an eligibility is based on an individual’s individual’s functional ability may functional ability, and while the size or change from day to day because of the weight of a mobility device exceeding variable nature of the person’s the vehicle’s capacity is not grounds to disability. reject paratransit eligibility, in some One commenter requested FTA note cases, an individual will be granted the qualification for a half-fare discount eligibility, but cannot be transported on under 49 U.S.C. 5307 for seniors and a transit agency vehicle. We added riders with disabilities does not have a language stating the vehicle capacity bearing on one’s complementary should be communicated to the rider, paratransit eligibility. We added a and the individual’s eligibility will be section explaining that the standards for maintained, so if the individual later half-fare eligibility are different from the obtains a smaller or lighter mobility paratransit eligibility requirements, and device, he or she will be able to be half-fare eligibility does not transported. automatically give the rider ADA A few commenters inquired regarding paratransit eligibility. the role of the age of children in There were a few comments regarding paratransit eligibility. One commenter conditional paratransit eligibility. suggested specifying that policies Commenters emphasized that in the limiting the availability of transit section discussing the necessity for service to children cannot be imposed conditional eligibility for individuals where hot or cold weather exacerbates solely on the paratransit system. their health conditions to the point that Another commenter stated an agency’s fare policies should not be indicative of they are unable to use fixed route, it should be clarified that it is the local a child’s ability to travel on fixed route, agency’s decision what the temperature and a reasonable person standard thresholds are. We added a footnote should apply: Whether a child can explaining that the Circular text travel independently without the assistance and supervision of an adult is provides specific examples of temperatures where it may be ‘‘too hot;’’ set not to a certain age, but to what a establishing different thresholds for reasonable person would conclude. specific regions is appropriate because Several commenters asserted these climates vary from region to region. policies should be decided at the local Another commenter noted conditional level because eligibility requirements eligibility should not be limited based must be ‘‘strictly limited’’ and based on trip purpose. We added text solely on ‘‘an individual’s ability.’’ We specifying that giving eligibility to clarified the language to state transit individuals for ‘‘dialysis trips only’’ is agencies can set requirements on what proposes a reduction in service, the transit agency should consider a review similar to a Title VI analysis. We clarified that under 49 U.S.C. 5307 there are requirements for public comment on fare and service changes, and a major reduction in fixed route service must also include consideration of the impact on complementary paratransit service. We received many comments regarding the ‘‘Monitoring and Data Collection’’ section of this chapter, generally questioning the value of this section to the reader. Upon review, we concluded that many of the points were repetitive of earlier sections and removed the section from the Circular. PO 00000 Frm 00125 Fmt 4703 Sfmt 4703 E:\FR\FM\05OCN1.SGM 05OCN1 mstockstill on DSK4VPTVN1PROD with NOTICES Federal Register / Vol. 80, No. 192 / Monday, October 5, 2015 / Notices not appropriate, but granting eligibility to an individual who is suffering from severe fatigue from a medical condition or treatment is appropriate. A commenter requested FTA clarify that while confidentiality in paratransit eligibility is vital, agencies can still tell drivers that riders need particular types of assistance. We added text noting an optional good practice for transit agencies is to add necessary information to the manifest that the operators may need to safely serve the rider, without including specific information on the nature of the rider’s disability. Regarding the eligibility determination process, we emphasized that local agencies devise the specifics of their process, including how and when they will conduct functional assessments, within the broad requirements of the regulations. One commenter requested the Circular go more in depth on having assessments conducted by professionals trained to evaluate the disabilities at issue. We added text, including support from Appendix D, stating while the ultimate determination is a functional one, medical evaluation from a physician may be helpful to determine the ability of the applicant, particularly if a disability is not apparent. We also stated that the professional verification is not limited to physicians, but may include other professionals such as mobility specialists, clinical social workers, and nurses, among others. Several commenters requested specific guidance regarding appropriate assessments and eligibility applications, including sample applications and assessments. We provided links to Easter Seals Project Action, which provides information on implementing functional assessments, administering the Functional Assessment of Cognitive Transit Skills (FACTS), and other technical assistance materials. A couple of commenters suggested adding information regarding making applications available in alternative formats. We added relevant language from Appendix D regarding alternative formats and deleted the suggestion that transit agencies ask applicants if they want future communications in alternative formats to prevent a reader from concluding that providing an accessible format is optional when a rider needs it. We also added information regarding the Title VI Limited English Proficiency (LEP) requirements for complementary paratransit, which ensure that those who do not speak English as their primary language can access paratransit services. This was added for consistency with a similar section in Chapter 8. VerDate Sep<11>2014 18:34 Oct 02, 2015 Jkt 238001 One commenter indicated the content on identification cards for paratransit eligibility should be left to local agencies. We clarified that the decision of whether to have identification cards and the content on them are local decisions, but if the card does not contain all the information required by section 37.125(e) (e.g., name of passenger, name of transit agency, limitations or conditions on eligibility, etc.), then letters of determination with the required information must be provided to the passenger. We clarified that FTA considers any determination less than unconditional eligibility, such as conditional and temporary eligibility, to be forms of ineligibility. Therefore, transit agencies must send letters regarding appeals to any applicant that receives any type of eligibility less than unconditional eligibility. There were several comments regarding recertification. One commenter requested clarification of what is a ‘‘reasonable interval’’ between eligibility determination and recertification. We added language from Appendix D explaining that requiring recertification too frequently would be burdensome to riders. Another commenter requested information regarding what steps a transit agency should take for recertification under a new or revised process. We added language encouraging agencies to consider the impact on riders when they tighten eligibility processes. There were many comments regarding the paratransit eligibility appeals process. We noted that transit agencies must inform riders they have the right to appeal any eligibility denial and added text explaining that riders can reapply for eligibility at any time. Many of these commenters stated the draft text encouraging transit agencies to provide free transport to and from paratransit appeals was not appropriate, and it was not required, and, therefore, should not be included in the Circular. A few comments supported FTA’s inclusion encouraging free transport to and from paratransit appeals. While it was only a recommendation, we removed the text encouraging free transport, instead encouraging agencies to ‘‘ensure that hearing locations are easy for appellants to reach.’’ Another commenter indicated the draft text was ambiguous regarding transit agencies arranging appeals without unreasonable delays. We clarified the statement by recommending that, although the regulations do not specify a deadline for which agencies must hold an in-person appeal after an applicant requests a PO 00000 Frm 00126 Fmt 4703 Sfmt 4703 60239 hearing, FTA encourages transit agencies to hold the appeal hearings promptly and suggests that hearings be held within 30 days of the request. A couple of commenters requested clarification regarding who can be on an appeals panel, specifically requesting FTA to specify that although someone hearing an appeal should not represent one particular point of view, it is acceptable to have an impartial employee of the transit agency participate in the appeals hearing. We edited the text to note if transit agency staff or members of the disability community are selected to hear paratransit eligibility appeals, it is important for them to remain impartial. There were many comments regarding personal care attendants (PCAs). A couple of commenters noted the terminology was inconsistent throughout, and requested the references to ‘‘personal attendants’’ be changed to ‘‘personal care attendants.’’ We edited the relevant text in Chapters 8 and 9 to consistently reference ‘‘personal care attendants.’’ Many commenters questioned the draft text stating that if a rider needs a PCA during the eligibility process that may be an indication the paratransit rider must be ‘‘met at both ends of the trip’’ and ‘‘never left unattended.’’ Commenters argued the language was inaccurate because there is no requirement for a paratransit rider not to be left unattended or met at both ends of the trip. We deleted this sentence as it was inconsistent with the regulations and policy, and clarified that a transit agency cannot impose a requirement for a rider to travel with a PCA. We also clarified the reasoning for asking during the eligibility process whether a complementary paratransit applicant needs a PCA or not, which is to ‘‘prevent potential abuse’’ of the provision. By documenting a rider’s need for a PCA during the eligibility process, the agency can determine if an individual traveling with the rider is a PCA or a companion, which in turn simplifies determining required fares. One commenter noted the regulation is singular, and, therefore, transit agencies are only required to provide each paratransit eligible rider with one PCA. We amended the language to state each rider is only entitled to travel with one PCA. Likewise, another commenter asked FTA to clarify that while transit agencies are required to accommodate only one companion per paratransit eligible rider, the regulations also require the transit agency to accommodate additional companions if space is available. We added text E:\FR\FM\05OCN1.SGM 05OCN1 mstockstill on DSK4VPTVN1PROD with NOTICES 60240 Federal Register / Vol. 80, No. 192 / Monday, October 5, 2015 / Notices reflecting this requirement. A few commenters requested that FTA reword the sentence saying transit agencies are encouraged to ‘‘make it easy for riders to reserve trips with PCAs and not require that they re-apply’’ if they previously did not need a PCA and now require one. We deleted this sentence as it did not add value as a recommendation. We received several comments praising regional paratransit eligibility approaches and encouraging FTA to support this concept. In response, we added a section entitled, ‘‘Coordination of Eligibility Determination Processes,’’ and stated FTA encourages transit agencies to coordinate eligibility determinations to make regional travel easier for customers. There were many comments regarding no-show suspensions. One commenter requested that the Circular provide specific guidance on how suspensions for no-shows should be calculated, and what constitutes a no-show outside the passenger’s control. We addressed these items by providing the regulatory text and examples of when no-shows are outside the passenger’s control, and providing examples of no-show policies that lead to suspensions. We also added language specifying that agencies are permitted to suspend riders who establish a pattern or practice of missing scheduled trips, but only after providing a rider with due process. In the case of no-show suspensions, due process means first notifying the individual in writing of the reasons for the suspension and of their right to appeal as outlined in section 37.125(g). We also added language specifying the purpose of noshow suspensions, which is to deter chronic no-shows. We explained that transit agencies must consider a rider’s frequency of use in order to determine if a pattern or practice of no-shows exist and recommended a two-step process for determining pattern or practice. We also clarified that FTA recommends the no-show suspension notification letters inform riders that no-shows beyond their control will not be counted, and we provided examples of how riders can explain the no-shows outside of their control. We recommended transit agencies have ‘‘robust procedures’’ to verify the no-shows were recorded accurately. Many of the comments on the topic of no-show suspensions challenged the proposed Circular statement, ‘‘FTA considers suspensions longer than 30 days to be excessive under any circumstance.’’ Commenters argued this is not based in regulation, and in some instances, suspensions longer than 30 days are necessary for repeat offenders VerDate Sep<11>2014 18:34 Oct 02, 2015 Jkt 238001 of the no-show policy. We edited this text to state, ‘‘While it is reasonable to gradually increase the duration of suspensions to address chronic noshows, FTA generally considers suspensions longer than 30 days to be excessive.’’ We also added language clarifying that FTA requires suspensions to be for reasonable periods, and FTA considers up to one week for a first offense to be reasonable. One commenter requested clarification regarding when an applicant can independently and consistently ‘‘remain safe when traveling alone.’’ The commenter noted this contradicts an earlier statement in Chapter 9 that general public safety concerns are not a factor in paratransit eligibility. In the final Circular, we have clearly distinguished between general public safety concerns, such as traveling at night or in high crime areas, from an individual’s personal safety skills, such as an individual whose judgment, awareness and decisionmaking are significantly affected by a disability and who would therefore be at unreasonable risk if they attempted to use the fixed route independently. K. Chapter 10—Passenger Vessels Chapter 10 discusses nondiscrimination regulations related to passenger vessels, including accessible information for passengers of passenger vessels, assistance and services, and complaint procedures. Chapter 10 remains substantially similar to the proposed chapter, with the primary exceptions of technical corrections and clarifications, and the addition of a few Part 39 provisions that were not included in the proposed chapter, but which commenters pointed out were relevant. Many commenters inquired as to which passenger vessel operators (PVOs) were addressed by the Circular. We edited the text to more clearly reflect which PVOs the Circular addresses. One commenter requested that we clarify whether Part 39 applies to only U.S. ships or also foreign flagged vessels. We edited the text to make clear the Circular does not address U.S. or foreign flag cruise ships. One commenter also pointed out that with respect to private PVOs operating under contract to public entities, a dock that received Federal financial assistance would not fall under PVO rules if the vessel was not covered. In response, we removed the term ‘‘and facilities’’ from the section discussing services using vessels acquired with FTA grant assistance. Several commenters also responded to the Part 39 nondiscrimination PO 00000 Frm 00127 Fmt 4703 Sfmt 4703 provisions. A few commenters suggested the sentence stating that passengers with disabilities cannot be excluded from participating or denied the benefits of transportation solely because of their disability was an inaccurate interpretation of the regulations because individuals with disabilities can be excluded from PVOs for many reasons based on their disabilities. The commenters also challenged the draft text regarding what PVOs cannot do, for example, require medical certificates or advance notice of travel from passengers with a disability, because under certain conditions PVOs can require these. While operators of public ferry service, in practice, would rarely if ever deny service on these grounds, we added sections discussing the applicable regulations, including refusing service to individuals with disabilities (10.2.2), refusing service based on safety concerns (10.2.3), requiring passengers to provide medical certifications (10.2.4), limiting the number of passengers with disabilities on vessels (10.2.5), and requiring advance notice from passengers with disabilities (10.2.6). One commenter noted that in the section regarding auxiliary aids and services, the proposed Circular included a statement that passengers needing a sign language interpreter should make this request early. The commenter asked for this to be deleted because PVOs are not required to provide sign language interpreters. We deleted this sentence because the types of trips addressed by this Circular are generally short and individuals would not require sign language interpreters. Regarding service animals, one commenter noted the regulations and definitions for service animals in the DOT (49 CFR part 39) and DOJ (28 CFR part 36) regulations are confusing because they are different, and PVOs are often unsure which to follow. We clarified that the service animal definition for DOT in Part 39 in the water transportation environment is different from DOT’s Part 37 definition. We included a link to guidance regarding ADA requirements for passenger vessels that addresses service animals, which explains that DOT interprets the service animal provisions of Part 39 to be consistent with DOJ’s service animal provisions. Similarly, we clarified that the relevant regulations and definition for wheelchairs and other assistive devices on passengers vessels are also found in Part 39, and different from the definitions provided in Part 37. E:\FR\FM\05OCN1.SGM 05OCN1 Federal Register / Vol. 80, No. 192 / Monday, October 5, 2015 / Notices L. Chapter 11—Other Modes Chapter 11 discusses other modes, including the general requirements for vehicles not otherwise mentioned in the Circular or covered by Part 38, as well as mode-specific requirements for certain types of vehicles. Vehicles referred to in this chapter include highspeed rail cars, monorails, and automated guideway transit, among other systems. This chapter is considerably shorter than the proposed chapter. One of the few comments we received noted the chapter lacked discussion. We agreed with the comment, and in the absence of recommendations for tailoring the chapter, we removed several sections that were largely composed of lists referring to regulatory sections and instead broadly summarized the requirements and directed the reader to the regulations for the specific technical information. mstockstill on DSK4VPTVN1PROD with NOTICES M. Chapter 12—Oversight, Complaints, and Monitoring Chapter 12 discusses FTA’s oversight of recipients and enforcement processes, onsite review information, and complaint process. It also discusses requirements and suggestions for the transit agency complaint process, and requirements and suggestions for transit agency monitoring of its services. Chapter 12 remains substantially similar to the proposed chapter, although we made changes based on DOT’s issuance of the reasonable modification final rule and in response to comments. The DOT final rule on reasonable modification amended the longstanding local complaint procedure requirements in 49 CFR 27.13, and then mirrored that provision in a new section 37.17. The rule added specific requirements that transit agencies must incorporate into their complaint procedures. For example, agencies must now sufficiently advertise the process for filing a complaint, ensure the process is accessible, and promptly communicate a response to the complainant. We revised sections to capture these new requirements, quoting the new regulatory text. We also edited slightly the Sample Comment Form attachment to illustrate how agencies may use such a form to collect ADA complaints consistent with the final rule. We received several specific comments on the chapter. One commenter suggested that viewing compliance review reports are helpful to improve service delivery. In response, we added a link to our Civil Rights Specialized Reviews Web page on the FTA Web site. Another commenter VerDate Sep<11>2014 18:34 Oct 02, 2015 Jkt 238001 noted while the Circular discusses finding agencies ‘‘compliant,’’ what FTA actually does is find that agencies lack deficiencies. We edited the text to incorporate the deficiency focus. One commenter, discussing FTA’s administrative enforcement mechanisms, stated that FTA should not be interpreting the provisions of 49 CFR 27.125, which provides steps FTA can take in response to deficiencies. Another commenter noted the Circular should not discuss suspension or termination of financial assistance, or alternatively consider intermediate steps such as voluntary arbitration or mediation, because suspension and termination are contrary to FTA’s goals. In response, we restated the regulatory requirements for suspending or terminating Federal financial assistance. Regarding FTA grant reviews, one commenter requested that the section be revised to offer guidance on the content of the reviews, including the scope of the reviews and how to prepare for them. Upon consideration, we have removed this section from the chapter, since grant reviews are not part of our oversight program. There were several comments regarding the FTA complaint process. We clarified that FTA also processes ADA complaints against non-grantees in accordance with Part 37 and added the relevant Appendix D language for explanation. Commenters noted that complaint decision letters are only relevant to specific situations and are not legally equivalent to regulations, and suggested FTA clarify the responses are only applicable to specific situations and do not create new requirements. In response, we explained that complaint determinations are applicable only to specific facts in question and are not necessarily applicable to other situations and that references to complaint responses in the Circular serve as illustrative examples of how regulations were applied by FTA in specific instances. In response to a comment requesting that FTA notify the grantee whenever a complaint is filed against it, we explained that we contact the grantee when we investigate a complaint and noted our discretion for accepting complaints for investigation. We also added a section explaining the criteria FTA uses to close complaints administratively, a process that typically does not include outreach or notification to the grantee. The administrative closure bases were taken from FTA’s Title VI Circular and are consistent with how FTA closes cases across its civil rights programs. PO 00000 Frm 00128 Fmt 4703 Sfmt 4703 60241 A few commenters noted requiring corrective action based on deficiency findings within 30 days of receipt of the corrective action letter is not required by regulations and is inappropriate. We edited the text to clarify FTA typically requests a response from the transit provider within 30 days outlining the corrective actions taken or a timetable for implementing changes—if correcting a deficiency takes longer, a timetable for corrective action is appropriate. There were several comments regarding the transit agency complaint processes. One commenter requested guidance regarding methods transit agencies can take to resolve customer complaints. As a result of the new complaint process requirements for transit agencies provided in the final rule on reasonable modification, we added information regarding the transit agency complaint process. Several of the new sections directly respond to this comment by providing additional information regarding how local transit agencies can act to resolve complaints, including information regarding designation of a responsible employee for ADA complaints, changes to the requirements regarding complaint procedures, and communicating the complaint response to the complainant. We also added language cautioning transit agencies against directing local complaints to contracted service providers for resolution, as it is the agency’s responsibility for ADA compliance. In addition, we provided additional guidance highlighting that agencies can use the same process for accepting and investigating ADA and Title VI complaints. We emphasized that local transit agencies have flexibility to establish the best formats for receiving ADA complaints, and provided information regarding different formats agencies may choose to use. A commenter requested additional guidance regarding publishing the name of the designated ADA coordinator. We clarified that while an individual must be designated as the ‘‘responsible employee’’ to coordinate ADA compliance, the individual can be publicized by title as opposed to by name, for example, ‘‘ADA Coordinator.’’ Another commenter provided a list of information that could be helpful in investigating complaints. We incorporated the list into an already existing list. Several commenters argued broadly that monitoring is not required in the regulations, and, therefore, FTA cannot impose the requirement on local agencies. Similar comments were made specific to Chapter 12. We added E:\FR\FM\05OCN1.SGM 05OCN1 60242 Federal Register / Vol. 80, No. 192 / Monday, October 5, 2015 / Notices language in Chapter 12 noting that transit agencies must monitor their service in order to confirm internally, and in some cases to FTA during oversight activity, that service is being delivered consistent with ADA requirements. Recipients must similarly ensure compliance of their subrecipients. However, we also state clearly that FTA does not dictate the specifics of an agency’s monitoring efforts and that approaches for monitoring will vary based on the characteristics of the service and local considerations. This is our main point when it comes to monitoring. We therefore shortened the section and removed portions we determined were overly broad since we did not receive feedback to tailor the discussion to local practices. We retained the table that cross-references monitoring discussions found in other chapters to assist the reader in locating the information. Therese W. McMillan, Acting Administrator. [FR Doc. 2015–25188 Filed 10–2–15; 8:45 am] BILLING CODE P DEPARTMENT OF TRANSPORTATION Pipeline and Hazardous Materials Safety Administration [Docket No. PHMSA–2015–0179] Pipeline Safety: Information Collection Activities Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT. ACTION: Notice and request for comments. AGENCY: In accordance with the Paperwork Reduction Act of 1995, PHMSA invites comments on certain information collections that will be expiring March 31, 2016. PHMSA will request an extension with no change for the information collections identified by the Office of Management and Budget (OMB) control numbers 2137–0610, 2137–0624, and 2137–0625. In addition, PHMSA will request a non-substantive change to the information collection identified under OMB control number 2137–0589 to revise the number of respondents PHMSA expects to comply with this information collection. DATES: Interested persons are invited to submit comments on or before December 4, 2015. ADDRESSES: Comments may be submitted in the following ways: E-Gov Web site: http:// www.regulations.gov. This site allows mstockstill on DSK4VPTVN1PROD with NOTICES SUMMARY: VerDate Sep<11>2014 18:34 Oct 02, 2015 Jkt 238001 the public to enter comments on any Federal Register notice issued by any agency. Fax: 1–202–493–2251. Mail: Docket Management Facility; U.S. Department of Transportation (DOT), 1200 New Jersey Avenue SE., West Building, Room W12–140, Washington, DC 20590–0001. Hand Delivery: Room W12–140 on the ground level of DOT, West Building, 1200 New Jersey Avenue SE., Washington, DC, between 9:00 a.m. and 5:00 p.m., Monday through Friday, except Federal holidays. Instructions: Identify the docket number, PHMSA–2014–0005, at the beginning of your comments. Note that all comments received will be posted without change to http:// www.regulations.gov, including any personal information provided. You should know that anyone is able to search the electronic form of all comments received into 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.). Therefore, you may want to review DOT’s complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19476) or visit http://www.regulations.gov before submitting any such comments. Docket: For access to the docket or to read background documents or comments, go to http:// www.regulations.gov at any time or to Room W12–140 on the ground level of DOT, West Building, 1200 New Jersey Avenue SE., Washington, DC, between 9:00 a.m. and 5:00 p.m., Monday through Friday, except Federal holidays. If you wish to receive confirmation of receipt of your written comments, please include a self-addressed, stamped postcard with the following statement: ‘‘Comments on PHMSA– 2014–0005.’’ The Docket Clerk will date stamp the postcard prior to returning it to you via the U.S. mail. Please note that due to delays in the delivery of U.S. mail to Federal offices in Washington, DC, we recommend that persons consider an alternative method (internet, fax, or professional delivery service) of submitting comments to the docket and ensuring their timely receipt at DOT. FOR FURTHER INFORMATION CONTACT: Angela Dow by telephone at 202–366– 1246, by fax at 202–366–4566, or by mail at DOT, PHMSA, 1200 New Jersey Avenue SE., PHP–30, Washington, DC 20590–0001. SUPPLEMENTARY INFORMATION: Section 1320.8(d), Title 5, Code of Federal PO 00000 Frm 00129 Fmt 4703 Sfmt 4703 Regulations, requires PHMSA to provide interested members of the public and affected agencies an opportunity to comment on information collection and recordkeeping requests. This notice identifies several information collection requests that PHMSA will submit to OMB for renewal. The following information is provided for each information collection: (1) Title of the information collection; (2) OMB control number; (3) Current expiration date; (4) Type of request; (5) Abstract of the information collection activity; (6) Description of affected public; (7) Estimate of total annual reporting and recordkeeping burden; and (8) Frequency of collection. PHMSA will request a three-year term of approval for each information collection activity. PHMSA requests comments on the following information collections: 1. Title: Pipeline Integrity Management in High Consequence areas Gas Transmission Pipeline Operators. OMB Control Number: 2137–0610. Current Expiration Date: 3/31/2016. Type of Request: Extension without change of a currently approved collection. Abstract: The Federal Pipeline Safety Regulations in 49 CFR part 192, subpart O require operators of gas pipelines to develop and implement integrity management programs. The purpose of these programs is to enhance safety by identifying and reducing pipeline integrity risks. The regulations also require that operators maintain records demonstrating compliance with these requirements. Affected Public: Gas transmission operators. Annual Reporting and Recordkeeping Burden: Estimated number of responses: 733. Estimated annual burden hours: 1,018,807. Frequency of collection: On occasion. 2. Title: Control Room Management/ Human Factors. OMB Control Number: 2137–0624. Current Expiration Date: 3/31/2016. Type of Request: Extension without change of a currently approved collection. Abstract: The Federal Pipeline Safety Regulations in 49 CFR parts 192 and 195 require operators of hazardous liquid pipelines and gas pipelines to develop and implement a human factors management plan designed to reduce risk associated with human factors in each pipeline control room and to maintain records demonstrating compliance with these requirements. Affected Public: Private sector; Operators of both natural gas and hazardous liquid pipeline systems. E:\FR\FM\05OCN1.SGM 05OCN1

Agencies

[Federal Register Volume 80, Number 192 (Monday, October 5, 2015)]
[Notices]
[Pages 60224-60242]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-25188]


-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Transit Administration

[Docket Nos. FTA-2014-0024, FTA-2014-0003, FTA-2012-0045]


Americans With Disabilities Act: Final Circular

AGENCY: Federal Transit Administration (FTA), DOT.

ACTION: Notice of availability of final circular.

-----------------------------------------------------------------------

SUMMARY: The Federal Transit Administration (FTA) has placed in the 
docket and on its Web site, guidance in the form of a Circular to 
assist grantees in complying with the Americans with Disabilities Act 
(ADA). The purpose of this Circular is to provide recipients of FTA 
financial assistance with instructions and guidance necessary to carry 
out the U.S. Department of Transportation's ADA regulations.

DATES: Effective Date: The final Circular becomes effective November 4, 
2015.

FOR FURTHER INFORMATION CONTACT: For program questions, Dawn Sweet, 
Office of Civil Rights, Federal Transit Administration, 1200 New Jersey 
Ave. SE., Room E54-306, Washington, DC 20590, phone: (202) 366-4018, or 
email, dawn.sweet@dot.gov. For legal questions, Bonnie Graves, Office 
of Chief Counsel, same address, Room E56-306, phone: (202) 366-4011, 
fax: (202) 366-3809, or email, bonnie.graves@dot.gov.

SUPPLEMENTARY INFORMATION:

Availability of Final Circular

    This notice provides a summary of the final changes to the ADA 
Circular and responses to comments. The final Circular itself is not 
included in this notice; instead, an electronic version may be found on 
FTA's Web site, at www.fta.dot.gov, and in the docket, at 
www.regulations.gov. Paper copies of the final Circular may be obtained 
by contacting FTA's Administrative Services Help Desk, at (202) 366-
4865.

Table of Contents

I. Overview
II. Chapter-by-Chapter Analysis
    A. General Comments
    B. Chapter 1--Introduction and Applicability
    C. Chapter 2--General Requirements
    D. Chapter 3--Transportation Facilities
    E. Chapter 4--Vehicle Acquisition and Specifications
    F. Chapter 5--Equivalent Facilitation
    G. Chapter 6--Fixed Route Service
    H. Chapter 7--Demand Responsive Service
    I. Chapter 8--Complementary Paratransit Service
    J. Chapter 9--ADA Paratransit Eligibility
    K. Chapter 10--Passenger Vessels
    L. Chapter 11--Other Modes
    M. Chapter 12--Oversight, Complaints, and Monitoring

I. Overview

    FTA is publishing Circular C 4710.1, regarding the Americans with 
Disabilities Act (ADA), to provide recipients of FTA financial 
assistance with information regarding their ADA obligations under the 
regulations, and to provide additional optional good practices and 
suggestions to local transit agencies.
    The proposed Circular was submitted to the public for notice and 
comment in three phases. FTA issued a notice of availability of the 
proposed first phase, entitled ``Americans with Disabilities Act: 
Proposed Circular Chapter, Vehicle Acquisition,'' in the Federal 
Register on October 2, 2012 (77 FR 60170). The comment period closed 
December 3, 2012. FTA issued a notice of availability of the second 
phase, entitled ``Americans with Disabilities Act: Proposed Circular 
Amendment 1,'' in the Federal Register on February 19, 2014 (79 FR 
9585). The comment period closed April 21, 2014. Amendment 1 introduced 
the following chapters: Chapter 1 (Introduction and Applicability); 
Chapter 2 (General Requirements); Chapter 5 (Equivalent Facilitation); 
and Chapter 8 (Complementary Paratransit Service). FTA issued a notice 
of availability of the third phase, entitled ``Americans with 
Disabilities Act: Proposed Circular Amendment 2,'' in the Federal 
Register on November 12, 2014 (79 FR 67234). The comment period was 
scheduled to close on January 12, 2015, but at the request of 
commenters, FTA extended the comment period until February 11, 2015. 
Amendment 2 introduced the following chapters: Chapter 3 
(Transportation Facilities); Chapter 6 (Fixed Route Service); Chapter 7 
(Demand Responsive Service); Chapter 9 (ADA Paratransit Eligibility); 
Chapter 10 (Passenger Vessels); Chapter 11 (Other Modes); and Chapter 
12 (Oversight,

[[Page 60225]]

Complaints, and Monitoring). This amendment also proposed additional 
text on monitoring practices as addenda to Chapter 2 (General 
Requirements) and Chapter 8 (Complementary Paratransit Service).
    FTA received comments from 75 unique commenters, with many 
commenters submitting comments on two or three of the notices. 
Commenters included individuals, transit agencies, disability rights 
advocates, State DOTs, trade associations, and vehicle manufacturers. 
This notice addresses comments received and explains changes we made to 
the proposed Circular in response to comments.
    FTA developed the Circular subsequent to a comprehensive management 
review of the agency's core guidance to transit grantees on ADA and 
other civil rights requirements. A primary goal of the review was to 
assess whether FTA was providing sufficient, proactive assistance to 
grantees in meeting civil rights requirements, as opposed to reacting 
to allegations of failure to comply with the requirements. Based on the 
review, FTA identified the need to develop an ADA circular similar to 
the circulars long in place for other programs. FTA recognizes there is 
value to the transit industry and other stakeholders in compiling and 
organizing information by topic into a plain English, easy-to-use 
format. A circular does not alter, amend, or otherwise affect the DOT 
ADA regulations themselves or replace or reduce the need for detailed 
information in the regulations. Its format, however, will provide a 
helpful outline of basic requirements with references to the applicable 
regulatory sections, along with examples of practices used by transit 
providers to meet the requirements. Simply stated, this circular is a 
starting point for understanding ADA requirements in the transit 
environment and can help transit agencies avoid compliance review 
findings of deficiency.
    Several commenters objected to FTA's development of an ADA 
Circular. They asserted that a ``best practices'' manual might be a 
more useful tool for stakeholders. The purpose of a Circular is to 
provide grantees with direction on program-specific issues, and this 
final Circular does that. Most of FTA's program circulars provide 
guidance on statutory provisions in the absence of a robust regulatory 
scheme. Here, we are providing guidance on a regulatory scheme that can 
be imposing and, in some cases, extremely technical. FTA has found 
stakeholder comments on the various phases of the proposed Circular to 
be extremely helpful in developing a final document that we believe 
will be useful to transit agencies, advocates, and persons with 
disabilities alike.
    Some commenters asserted the Circular was a ``de facto regulation'' 
that would have significant cost impacts and should be subject to 
evaluation under Executive Orders 12866 and 13563, which direct federal 
agencies to assess costs and benefits of available regulatory 
alternatives. FTA is confident the final Circular does not include any 
new requirements and thus has no cost impacts. Where commenters 
asserted we had ``blended'' the regulations with good practices in the 
proposed Circular, we have clearly distinguished between the 
regulations and optional good practices or recommendations in the final 
Circular.
    Commenters also asserted that FTA does not have the authority to 
interpret the DOT ADA regulations, and that any such interpretations 
must come from DOT. FTA is the agency charged with enforcing the ADA as 
it applies to public transportation services, and has been interpreting 
the regulations through complaints, letters of finding, and compliance 
reviews for many years. We note that we coordinated development of the 
Circular with DOT, and we also consulted with the U.S. Department of 
Justice (DOJ) and the United States Architectural and Transportation 
Barriers Compliance Board (Access Board).
    Some commenters requested that FTA publish all twelve chapters one 
more time for additional notice and comment. Given that interested 
stakeholders have had an opportunity to comment on all of the guidance 
presented in the final Circular, and providing a second opportunity to 
comment would not be consistent with past practice, we decline to 
undertake a second round of notice and comment.
    FTA received numerous comments outside the scope of the Circular, 
such as comments objecting to the DOT regulations themselves or 
requesting amendments to the regulations, comments rendered moot by 
publication of DOT's ``Final Rule on Transportation for Individuals 
with Disabilities; Reasonable Modification of Policies and Practices'' 
[hereinafter, ``final rule on reasonable modification''] (80 FR 13253) 
(http://www.gpo.gov/fdsys/pkg/FR-2015-03-13/pdf/2015-05646.pdf), and 
comments with specific factual scenarios that are better addressed 
through requests for technical assistance. This notice does not respond 
to comments outside the scope of the Circular.

II. Chapter-by-Chapter Analysis

A. General Comments

    The Circular is organized topically, as requested by several 
commenters. Each chapter begins with an introduction, and is divided 
into sections and subsections. In response to many comments requesting 
inclusion and clear delineation of the regulations in the text of each 
section, we revised the organizational structure to include the text of 
the regulations, followed by a clearly delineated discussion section 
that provides means of complying with the provisions and optional good 
practices. Thus, many sections and subsections begin with a 
``Requirement'' section, which states the regulations relevant for that 
section, and then a ``Discussion'' section, which includes explanation 
of the requirement, relevant DOT or FTA guidance, and suggested 
optional good practices.
    The Circular does not, and is not intended, to exhaustively cover 
all of the DOT ADA requirements applicable to FTA grantees. 
Additionally, the Circular does not establish new requirements; it 
represents current regulations, guidance, and policy positions of DOT 
and FTA.
    Many commenters suggested that throughout the proposed Circular, 
FTA was imposing requirements not otherwise found in the regulations. 
For example, several commenters stated that FTA expanded regulatory 
requirements by mixing the DOT ADA regulations with suggestions and 
good practices. Commenters in particular were concerned with use of the 
word ``should,'' which they asserted creates ambiguity as to whether a 
statement is mandatory or permissive. In response, we removed 
``should'' from the final Circular (except, for example, where we 
quoted 49 CFR part 37 and Appendix language) and clarified which items 
are mandatory requirements, and which are permissive. In addition to 
delineating requirements by having separate ``Requirement'' and 
``Discussion'' sections as discussed above, we indicated requirements 
with mandatory words such as ``must,'' ``obligates,'' or ``requires.'' 
Similarly, we indicated a certain action or activity is not a 
requirement by using terms such as ``encourages,'' ``optional,'' 
``recommends,'' or ``suggests.''
    We added regulatory text and citations to 49 CFR part 37, 
Appendices D and E of 49 CFR part 37, and previously published DOT 
guidance throughout the final Circular to provide support for 
requirements. Several commenters requested clarification of items 
presented as ``good practices.''

[[Page 60226]]

They expressed concern that these ``good practices'' might form the 
basis for a deficiency in a future FTA oversight review, and some 
asserted these suggested ``good practices'' would take the place of 
local planning processes. Good practices, while encouraged, are not 
requirements, will not lead to findings in compliance reviews, and 
should not take the place of local planning and decision-making 
processes. To address these concerns we added this statement in the 
introduction of each chapter: ``FTA recommendations and examples of 
optional practices are included throughout the Circular and do not 
represent requirements. FTA recognizes that there are many different 
ways agencies can implement the regulatory requirements and ensure the 
delivery of compliant service. FTA encourages transit agencies to 
engage riders with disabilities when making decisions about local 
transit service.''
    Many commenters requested specific citations to the regulations, 
letters of finding, existing guidance and case law. As stated above, we 
added the citations to the regulations in each section and subsection 
of the final Circular, as well as direct quotes from and hyperlinks to 
Appendix D and Appendix E to Part 37. In addition, we included several 
links to letters of finding from FTA's Office of Civil Rights, as well 
as DOT guidance documents. Similarly, a commenter asked for a thorough 
explanation of the role of other federal agencies regarding the ADA. 
Where relevant and helpful, we included references to other agencies 
such as the Access Board, the Department of Justice, the Federal 
Highway Administration and the Federal Railroad Administration. We did 
not, however, include citations to case law in the final Circular. FTA 
circulars typically do not include case law citations, and where we 
included one in chapter 3 of the proposed Circular, commenters 
objected. We have removed the citation from chapter 3 and instead 
discuss the relevant case law in this Federal Register notice in the 
chapter 3 discussion, below.
    Commenters made stylistic and word choice suggestions throughout 
the Circular. In many cases, we adopted them because they improve the 
readability, accuracy, or clarity of the document. Commenters also 
pointed out typographical errors, grammatical mistakes, bad web links, 
lack of citations, and inconsistent numbering and cross references 
throughout the Circular. We made corrections based on those comments, 
and we made additional stylistic, grammatical, and minor technical 
changes to improve readability of the document.
    In addition, we made changes to enhance clarity for the reader. We 
reduced repetition in the text and honed the language to be clearer and 
more direct. We added more headings and subheadings throughout to make 
it easier for the reader to find and reference sections. We reorganized 
chapters and moved sections around for more logical flow and ease of 
read. We deleted text that either was not relevant or provided little 
value to the reader. We also added internal cross-reference citations 
to assist the reader in following topical discussions throughout the 
document.
    Several commenters suggested the circular should provide 
specificity when discussing the types of public transportation systems 
and services, particularly in regard to ADA complementary paratransit 
and general public demand responsive service. Throughout the Circular, 
we refrain from using the term ``paratransit'' in isolation unless the 
type of paratransit--ADA complementary or general public demand 
response--to which we are referring is clear. Another commenter asked 
for definitions for ``fixed route'' and ``demand responsive service,'' 
and we have provided definitions of those terms and other terms where 
relevant; for example, at the start of Chapter 7 we provide the section 
37.3 definitions for fixed route and demand responsive service and 
include a brief discussion.
    Commenters noted that portions of the text included the term 
``common wheelchair'' although the term was removed from the DOT ADA 
regulations in the 2011 Amendments. The dimensions of a common 
wheelchair (30 inches by 48 inches, weighing 600 pounds when occupied) 
remain the minimum dimensions that must be accommodated on a transit 
vehicle, pursuant to 49 CFR part 38. In the final Circular, we use the 
term only when referring to securement areas (vehicle acquisition bus 
and van checklist in chapter 4), and when quoting 49 CFR 37.123 in 
chapter 9. In addition, we have added some explanatory text to chapter 
2.

B. Chapter 1--Introduction and Applicability

    Chapter 1 introduces the Circular, provides a brief summary of the 
regulations applicable to public transit providers, discusses the 
applicability of the DOT ADA regulations, includes a list of 
transportation services not addressed in the Circular, and outlines the 
organization of the document.
    To clarify the types of entities addressed, we added a footnote 
with the DOT ADA regulatory definition of public entity. Consistent 
with organizing the final Circular by topic, we removed the discussions 
included in the proposed Circular on university transportation systems, 
vanpools, airport transportation systems, and supplemental services for 
other transportation modes from Chapter 1. We moved the discussions on 
university transportation systems and supplemental services for other 
transportation modes to Chapter 6 and vanpools to Chapter 7. We added 
airport transportation systems to the list of transportation services 
not covered in the Circular.
    Several commenters expressed concern about which entities are 
covered or not covered by the ADA regulations and which are addressed 
in the Circular. In response, we made edits to Chapter 1 to address the 
coverage of both the Circular specifically and the DOT ADA regulations 
generally.
    On the topic of services under contract or other arrangements, one 
commenter requested guidance on whether the ``stand-in-the-shoes'' 
requirements referenced in the DOT ADA regulations apply to a situation 
in which a public entity contracts with another public entity. We added 
Appendix D language to clarify that a public entity may contract out 
its service but not its ADA responsibilities. Another commenter 
suggested adding an example in the section, ``When the Stand-in-the-
Shoes Requirements Do Not Apply'' to clarify when private entities do 
not ``stand in the shoes'' of the public entity. We added language to 
clarify this point. Moreover, one commenter expressed concern about the 
stand-in-the-shoes requirement as it relates to private entities 
receiving section 5310 funding (Enhanced Mobility for Seniors and 
Individuals with Disabilities Formula Program). In the proposed 
Circular we distinguished between ``traditional section 5310 projects'' 
and other projects when applying the ``stand-in-the-shoes'' provisions. 
We revised this section to instead draw a distinction between closed-
door and open-door service. Essentially, subrecipients that receive 
section 5310 funding and provide closed-door service to their own 
clientele do not stand in the shoes of the state administering agencies 
or designated recipients. Subrecipients that provide open door service, 
defined as service that is open to the general public or to a segment 
of the general public, do stand in the shoes of state agencies or 
designated recipients.
    One commenter expressed concern about the following statement: 
``FTA grantees are also subject to the

[[Page 60227]]

Department of Justice (DOJ) ADA regulations. Public entities are 
subject to 28 CFR part 35, which addresses state and local government 
programs.'' To be more precise, we removed the statement and directly 
cited 49 CFR 37.21(c).

C. Chapter 2--General Requirements

    Chapter 2 discusses the regulations related to nondiscrimination 
and other applicable crosscutting requirements, including prohibitions 
against various discriminatory policies and practices, equipment 
requirements for accessible services, assistance by transit agency 
personnel, service animals, oxygen supplies, accessible information, 
personnel training, reasonable modification of policy, and written 
policies and procedures. The content of Chapter 2 of the final Circular 
is substantially similar to Chapter 2 of the proposed Circular, except 
we have added Reasonable Modification of Policy, and we removed the 
discussion on monitoring. In addition to edits made in response to 
comments, we have made stylistic and technical changes, and reorganized 
the chapter to be consistent with the format of the rest of the 
Circular.
    We did not include reasonable modification in the proposed 
Circular, but several commenters preemptively objected to the concept 
of reasonable modification being included in the Circular without the 
support of a final rule. The DOT's final rule on reasonable 
modification was published on March 13, 2015 (80 FR 13253), and became 
effective on July 13, 2015. Therefore, we added the ``Reasonable 
Modification of Policy'' section to this chapter, provided background 
on the final rule, and discussed requirements of and exceptions to the 
rule with language from the preamble and the final rule itself. In 
particular, we noted the rule does not require an agency to establish a 
separate process for handling reasonable modification requests; an 
agency can use some or all of its procedures already in place. The 
``discussion'' sections following the regulatory text do not attempt to 
interpret the regulation beyond what is published in the final rule, 
the preamble, and Appendix E to 49 CFR part 37.
    We received a number of comments on nondiscrimination and 
prohibited policies and practices. In the examples of policies and 
practices FTA considers discriminatory, one commenter suggested 
including related state laws. Due to the wide variation of 
nondiscrimination laws across states and local jurisdictions, we 
decided not to include state laws in the examples. While one commenter 
supported the examples listed, another commenter, citing the example of 
boarding passengers with disabilities separately, noted there are 
situations where requiring persons with disabilities to board 
separately is valid, such as allowing a rider with a mobility device to 
board first or last to ensure space in the securement area. We 
determined that including the example about separate boarding could 
create confusion, so we removed it from the bulleted list.
    Regarding the prohibition against imposition of special charges, 
one commenter suggested including an additional example regarding 
cancelled and no-show trips. We added this example to the bulleted list 
of examples of prohibited charges. Another commenter asserted providers 
must not charge extra for paratransit service. Charging twice the fixed 
route fare is an allowable charge for complementary paratransit service 
and is not a special charge. As discussed in chapter 8, charging for 
premium complementary paratransit service (e.g., same day trips, ``will 
call'' service, etc.) is permitted.
    On service denials due to rider conduct, several commenters 
suggested making clear that verbal assault of a driver or other 
passengers can be grounds for refusing service. We included this 
suggestion and added an example. A few commenters wanted clarification 
on the statement that a transit agency cannot deny service to persons 
with disabilities based on what the transit agency perceives to be safe 
or unsafe. Because a transit agency is permitted to deny service to 
someone who is a direct threat to the health or safety of others, we 
added the qualification that an agency cannot deny service to persons 
with disabilities based on what it perceives to be safe or unsafe ``for 
that individual.'' Another commenter was concerned we had expanded the 
meaning of ``direct threat'' without providing clarity as to how to 
make a direct threat determination. In response, we note the final rule 
on reasonable modification amended sections 37.3 and 37.5 to include 
direct threat as a cause for service denial. We incorporated relevant 
language from Appendix D about an agency making an individualized 
assessment based on reasonable judgment that accounts for several 
factors. We also added clarification that direct threat to others may 
overlap with seriously disruptive behavior.
    One commenter expressed support for the discussion on the right of 
individuals to contest service denials. Another commenter suggested 
inclusion of additional language related to appeal rights. We revised 
the language to reflect that riders must have the opportunity to 
present information to have service reinstated.
    We received multiple comments on equipment requirements for 
accessible service. One commenter stated that FTA should encourage 
transportation providers to perform routine maintenance and updates to 
features over which they have control. We note both the proposed and 
final Circular include language that transit agencies must inspect all 
accessibility features often enough to ensure they are operational and 
to undertake repairs or other necessary actions when they are not.
    In response to a comment requesting clarification on snow removal 
and asking for a specific timeframe in which snow must be removed to 
allow for accessible routes to transit service, we added a subsection, 
``Ensuring Accessibility Features Are Free from Obstructions.'' We 
stated in the subsection that agencies have an obligation to keep 
accessible features clear of obstructions if they have direct control 
over the area. We included an illustrative example of how a particular 
transit agency clears snow, but we do not prescribe a specific 
timeframe because there are context-specific factors to account for, as 
well as local laws governing timeframes for snow removal. Another 
commenter asked whether a transit agency has an obligation to tow 
illegally parked vehicles occupying accessible parking spaces. We 
stated in this subsection that agencies have an obligation to enforce 
parking bans and to keep accessible features clear where they have 
direct control over the area, which may include removing illegally 
parked vehicles.
    We received numerous comments on lifts, ramps, and securement use. 
In the final Circular, throughout the section, we added language from 
Appendix D and previously published DOT Disability Law Guidance to 
clarify the discussion.
    In regard to wheelchairs, one commenter indicated it required 
footrests for personal safety of the passenger while maneuvering. We 
made clear in the final Circular a transit agency cannot require a 
wheelchair to be equipped with specific features, and noted that a 
policy requiring wheelchairs to be so equipped is prohibited by the 
general nondiscrimination provision of 49 CFR 37.5. Another commenter 
requested an express statement that blocking an aisle is a legitimate 
safety concern for which

[[Page 60228]]

a wheelchair can be excluded. In response, we included language from 
the preamble to DOT's September 19, 2011, ``Final Rule on 
Transportation for Individuals with Disabilities at Intercity, 
Commuter, and High Speed Passenger Railroad Station Platforms; 
Miscellaneous Amendments'' (76 FR 57924) to address this concern, and 
we added Appendix D text. In regards to securement areas, a commenter 
suggested adding a qualification that wheelchairs need to fit in the 
securement area, and we included the suggested language in the final 
Circular. One commenter also supported the discussion on maintaining an 
inventory of lifts, ramps, and securement areas. On boarding and 
alighting direction, one commenter asked us to clarify that the 
requirements applied to ramps as well as lifts. In response, we added a 
reference including ramps. Another commenter suggested we include 
language that an agency advertise how its vehicles meet or exceed the 
Part 38 design standards as to wheelchair accessibility. In response, 
we included examples of where agencies may provide such up-to-date 
information: On schedules, rider guides, agency Web sites, and through 
outreach.
    A few commenters requested further guidance on other mobility 
devices. We included language from DOT Disability Law Guidance that a 
provider is not required to allow onto a vehicle a device that is too 
big or poses a direct threat to the safety of others, and provided a 
link to the guidance in a footnote. Another commenter requested 
guidance related to a bicycle as a mobility device. In response, we 
added bicycles to the list of items not primarily designed for use by 
individuals with mobility impairments, along with shopping carts and 
skateboards. A few commenters sought clarification as to whether users 
of non-wheelchair mobility devices, such as rollators, can be required 
to transfer to a vehicle seat. In response, we added language stating 
an agency can require people using such devices to transfer to a 
vehicle seat.
    One commenter pointed out an inconsistency of using both ``lap and/
or shoulder belts'' and ``lap and shoulder belts'' and suggested using 
a consistent term. In response to this and other comments on the 
subject, we used the more accurate terms of ``seat belts and shoulder 
harnesses.'' Further, we provided a link to DOT Disability Law Guidance 
for more information on seat belts.
    On allowing standees on lifts, one commenter suggested explicitly 
mentioning passengers with non-visible disabilities as eligible users. 
In response, we added language specifying that the standees on lifts 
requirement applies to riders who may not have a visible or apparent 
disability. In addition, we provided Appendix D language about allowing 
individuals who have difficulty using steps to use a lift on request.
    Regarding assistance by transit agency personnel, one commenter 
suggested clarification of assistance with securement systems, ramps, 
and lifts. We provided examples of types of assistance, and clarified 
the interaction between direct threat and required assistance for 
securement systems, ramps, and lifts. Of note, we explained the 
regulations do not set a minimum or maximum weight for an occupied 
wheelchair that drivers are obligated to help propel, and that transit 
agencies will need to assess whether a level of assistance constitutes 
a direct threat to a driver on a case-by-case basis.
    We received several comments related to service animals. Some 
commenters requested that DOJ and DOT reconcile their rules on service 
animals; the Circular explains the current requirements, and we have 
forwarded those comments to DOT for their consideration. One commenter 
appreciated the specification that emotional support is not enough to 
meet the regulatory definition for service animal because animals that 
provide emotional support passively as ``emotional support animals'' 
are not trained to perform a certain task. Another commenter asked 
whether service animals include those to detect onset of illnesses like 
seizures. In response, we included examples of service animals that 
serve individuals with hidden disabilities such as seizures or 
depression. In response to comments requesting clarification on how to 
determine if an animal is a service animal, we added to the final 
Circular the two questions transit personnel may ask a passenger with a 
service animal: (1) Is the animal a service animal required because of 
a disability? and, (2) What work or task has the animal been trained to 
perform?
    On the bulleted list of guidance on service animals, one commenter 
supported the point about transit agencies not imposing limits on the 
number of service animals accompanying a rider, as well as the examples 
of when a service animal is under the owner's control and when it is 
not. A few commenters suggested including more examples to the bulleted 
list of guidance applicable to service animals: A driver is not 
required to take control of a service animal, and clarification 
regarding passengers with animal allergies. In response, we edited the 
list to state a rider's request regarding the driver taking charge of a 
service animal may be denied and, because the regulations expressly 
state that service animals must be allowed to accompany individuals on 
vehicles and in facilities, we added text stating that other 
passengers' allergies to animals would not be grounds for denying 
service to a person with a service animal. Further, we added a footnote 
referencing DOJ guidance on service animals with the note that some of 
the guidance may be inapplicable to a transit environment.
    One commenter asked for clarification regarding the ADA regulation 
and DOT safety guidance related to oxygen. We revised the discussion to 
make clear that commonly used portable oxygen concentrators do not 
require the same level of special handling as compressed oxygen 
cylinders. This revision includes a citation to the regulation and an 
explanation of the referenced FTA complaint response.
    We received multiple comments on the provision of information in 
accessible formats. One commenter requested guidance on when and how 
often a transit agency should provide information on system 
limitations, such as elevator/escalator outages and service delays. We 
do not prescribe a single standard because of the vast differences 
among transit agencies, but we cited the regulation and explained that 
a transit agency is obligated to ensure access to information, 
including information related to temporary service changes/outages, for 
individuals with disabilities. One commenter supported the nuance that 
information needs to be in usable format, even if it is not a preferred 
format. On the topic of Web site accessibility, a few commenters 
requested clarification on requirements and examples of good practices. 
Another commenter noted Web site accessibility is a requirement, not a 
good practice. In response, we added an ``Accessible Web sites'' 
subsection, in which we specified that section 37.167(f) requires 
information concerning transportation services to be available and 
accessible. We also referred to DOJ and Access Board guidance. Another 
commenter stated visual displays must be made available for people who 
have hearing disabilities. In response, we added the ``Alternatives to 
Audio Communications'' subsection, which addresses visual information, 
and referenced DOT Standard 810.7. One commenter stated the voice relay 
services must be maintained despite advances in smartphone and other

[[Page 60229]]

communications technology. In response, we included language on the 
importance of continuing to advertise relay service numbers for riders 
who cannot access the latest technologies.
    We received a few comments on personnel training. One commenter 
disagreed with the statement that, ``rider comments and complaints can 
be the ultimate tests of proficiency; comments that reveal issues with 
the provision of service are good indicators employees are not trained 
proficiently,'' because the rider comments may not contain violations 
of the regulations. In response, we replaced ``are'' with ``may serve 
as'' in the sentence at issue. Another commenter suggested including 
more language on training, specifically for contractors and third-party 
operators. Accordingly, we included language directly from Appendix D.
    We received numerous comments related to monitoring as proposed in 
Chapter 2, which was comprised primarily of bulleted lists on data 
collection, reviewing data, and direct observation. Several commenters 
disagreed with its inclusion and asked for the regulatory basis for 
these requirements. Multiple commenters disagreed with the discussion, 
asserting it would be time consuming and costly. Several commenters 
called for its deletion. Conversely, there were commenters who 
supported the inclusion of this section. In response to commenters' 
concerns--and in recognition that the specifics of a monitoring 
approach are developed locally--we removed the proposed monitoring 
section from this chapter.

D. Chapter 3--Transportation Facilities

    Chapter 3 discusses the regulations related to transportation 
facilities, with emphasis on the requirements for new construction and 
alterations. It also addresses common issues with applying the 
requirements.
    On the topic of coordinating with other entities, several 
commenters objected to this section, asserting that FTA was adding a 
requirement that did not exist in the regulation, while one commenter 
believed the discussion was critically important to accessibility for 
individuals who use public transportation and required more than a 
single paragraph on the topic. Some commenters noted that coordination 
with public agencies and other stakeholders, whether formally or 
informally, is a routine part of their local decision-making process. 
The commenters who objected believed this discussion created a new, 
open-ended responsibility that was not supported by the regulations; 
one particular concern was that this language appeared to create an 
active monitoring requirement for every facility element in their 
service area. In response, we added a subsection on ``Coordination with 
Other Entities,'' which states FTA encourages a transit agency to 
engage with other entities that control facility elements used to 
access the transportation facility when undertaking a construction or 
alteration project involving its own facilities. This subsection also 
explains the goal of coordination efforts and uses the terms ``engage'' 
and ``encourage'' to distinguish the efforts from a highly formalized 
coordination process. Thus, there is no open-ended responsibility with 
unlimited obligations on the part of transit agencies.
    Several commenters asked for specifics as to what coordination 
efforts should look like. Because these are context-specific engagement 
efforts, we did not provide extensive examples of what engagement looks 
like. We did, however, include an example on advising a municipality 
that its sidewalks adjacent to a transit agency's facilities were 
inaccessible. Another commenter suggested the agencies document 
coordination efforts to demonstrate a good faith effort to coordinate, 
in the event the other entity is uncooperative or nonresponsive, and we 
adopted this suggestion. In a related comment, another commenter was 
concerned with the recourse available for unsuccessful engagement 
efforts. We added language that a transit agency can contact the FTA 
Office of Civil Rights to help facilitate coordination with the Federal 
Railroad Administration (FRA), the Federal Highway Administration 
(FHWA), or other counterparts.
    Next, we received numerous comments on the section, ``Common Issues 
in Applying the DOT Standards.'' Some commenters supported this section 
because it provided a good level of detail and explained important 
issues. One commenter suggested discussing escalators and elevators, 
but we declined to add these topics because in the context of applying 
the DOT Standards, they are not common issues.
    We received several comments on passenger loading zones. Some of 
the commenters asked for added details or further explanation of the 
discussion and figures. We did not add all of the suggestions because 
we wanted the figures to be easily readable and focused on common 
issues. But we did revise figures based on suggestions, such as 
including a curb ramp as part of an accessible route to the facility 
entrance in Figure 3-2, which depicts the required dimensions for 
passenger loading zones and access aisles. On the topic of curb ramps, 
a few commenters asked for clarification on level landing, and in 
response we added text providing the slope requirement for a level 
landing to Figure 3-3, which depicts curb ramp requirements and common 
deficiencies. One commenter suggested additional guidance on slopes and 
vertical lips rather than only pointing them out in Figure 3-3. We 
added an example regarding slopes in curb ramps that were too steep for 
wheelchairs to maneuver them, and cited to the relevant DOT Standards 
and FHWA guidance. In Figure 3-3, a commenter pointed out the 
detectable warnings incorrectly extend through the curb line, so we 
corrected the figure.
    Regarding station platforms, a few commenters stated the guidance 
on detectable warning orientation was unclear. We revised the statement 
on orientation and alignment to state they are commonly aligned at 90 
degrees, but 45 degrees is acceptable.
    We received one comment regarding new construction. The commenter 
suggested including the manner in which conditions of structural 
impracticability may be petitioned to FTA. In response, we added the 
suggestion that transit agencies should contact the FTA Office of Civil 
Rights.
    We received numerous comments on the ``Alteration of Transportation 
Facilities'' section. Several commenters believed this section expanded 
the regulations concerning the various concepts of alterations, 
technical infeasibility, usability, and disproportionate cost. In 
response, we revised the section by incorporating suggestions and 
clarifying the requirements and discussion. Although we proposed to 
introduce the topic by citing the regulatory language and providing 
definitions and a case law example, commenters expressed concern with 
this approach. In response, we revised the section's introductory 
paragraph to explain the two types of alterations (as described in 49 
CFR 37.43(a)(1) and (a)(2), discussed below), as well as to note the 
difference between the two types, and the requirements for alterations.
    Commenters' concerns generally centered on FTA's interpretation of 
49 CFR 37.43(a)(1) and (a)(2). Importantly, there is a distinction 
between these two provisions. Section 37.43(a)(1) applies to 
alterations of existing facilities that could affect the usability of 
the facility--what we have labeled in the final Circular, ``General 
Alterations.'' When making general alterations, the entity ``shall make 
the alterations . . . in such a manner, to the maximum extent feasible, 
that the altered portions

[[Page 60230]]

of the facility are readily accessible to and usable by individuals 
with disabilities, including individuals who use wheelchairs, upon the 
completion of such alteration.'' In section 37.43(a)(1), cost is not a 
factor.
    On the other hand, section 37.43(a)(2) provides that when a public 
entity ``undertakes an alteration that affects or could affect the 
usability of or access to an area of a facility containing a primary 
function, the entity shall make the alteration in such a manner that, 
to the maximum extent feasible, the path of travel to the altered area 
. . . [is] readily accessible to and usable by individuals with 
disabilities, including individuals who use wheelchairs, upon 
completion of the alteration. Provided, that alterations to the path of 
travel . . . are not required to be made readily accessible to and 
usable by individuals with disabilities, including individuals who use 
wheelchairs, if the cost and scope of doing so would be 
disproportionate.'' This provision is discussed in the subsection, 
``Areas of Primary Function and Path of Travel.''
    Some commenters asserted this is a new interpretation, the 
interpretation adds regulatory requirements related to alterations, is 
inconsistent with the statute, and amounts to an unfunded mandate. 
Importantly, while the issue of alterations to the path of travel 
itself does not arise frequently, this is not a new interpretation by 
FTA. For example, in 2011, subsequent to a compliance review, we found 
a transit agency deficient when it made alterations to a pedestrian 
overpass and two sets of stairs but did not analyze the feasibility of 
making the station fully accessible, and did not make the station fully 
accessible. Further, the plain language of the ADA and DOT's 
implementing regulations, federal appellate case law, and the 
Department of Justice's (DOJ) interpretation of the ADA's legislative 
history each dictate that costs and cost-disproportionality related to 
alterations may be considered by a public entity only under 
circumstances where a public entity is undertaking an alteration to a 
primary function area of the facility (e.g., train or bus platforms, 
passenger waiting areas, etc.) and therefore must also make alterations 
to the path of travel to make it accessible to the maximum extent 
feasible.\1\
---------------------------------------------------------------------------

    \1\ See 42 U.S.C. Sec.  12147(a); 49 CFR Sec.  37.43(a), (c); 
DOJ Final Rule Implementing Title III of the ADA, 56 FR 35544, 35581 
(July 26, 1991) (Title II of the ADA regarding public services and 
public transportation is identical in pertinent language to Title 
III of the ADA) (``Costs are to be considered only when an 
alteration to an area containing a primary function triggers an 
additional requirement to make the path of travel to the altered 
area accessible''); see also Disabled in Action of Pa. v. Southeast 
Pa. Transp. Auth., 635 F.3d 87, 95 (3d Cir. 2011); Roberts v. Royal 
Atlantic Corp., 542 F.3d 363, 371-72 (2d Cir. 2008).
---------------------------------------------------------------------------

    Thus, where an element of a path of travel (such as a sidewalk, 
pedestrian ramp, passageway between platforms, staircase, escalator, 
etc.) in an existing facility is itself the subject of alteration--that 
is, not in connection with an alteration to a primary function area--
and is therefore subject to 49 CFR 37.43(a)(1), the public entity is 
required to conduct an analysis of the technical feasibility of making 
the altered portion (i.e., the element of the path of travel) readily 
accessible to and usable by individuals with disabilities, including 
individuals who use wheelchairs, without regard to cost or cost-
disproportionality, and making the facility accessible to the maximum 
extent feasible. We have included this discussion in the subsection, 
``When the Altered Area is the Path of Travel.''
    Some commenters expressed concern that the language in this 
subsection was drafted broadly, and that an alteration to a sidewalk or 
parking lot could trigger the requirement to conduct an analysis 
regarding the feasibility of installing an elevator. We have amended 
the text to clarify that it is the element of the path of travel 
undergoing the alteration that must be made accessible. Only 
alterations to stairs or escalators would require an analysis of 
whether it is technically feasible to install a ramp, elevator, or 
other level-change method or device. A commenter expressed concern 
about multiple station entrances and an apparent requirement for each 
station entrance to be accessible. Specifically, where one entrance has 
an accessible path of travel, the commenter was concerned that 
alteration to escalators or stairs at other station entrances would 
require those station entrances be made accessible. We have added 
language citing Exception 1 to DOT Standard 206.4, providing that where 
an alteration is made to an entrance, and the building or facility has 
another accessible entrance that is on an accessible route, the altered 
entrance does not have to be accessible.
    Several commenters asserted the language in the proposed Circular 
would require agencies to add an elevator any time even minor repairs 
are made to stairs or escalators. We included the definition of 
``alteration'' in both the proposed and final Circular. The definition 
of alteration specifically excludes normal maintenance, and we would 
consider minor repairs to be normal maintenance. We have provided 
examples of what would be considered an alteration to staircases in the 
final Circular.
    Finally, some commenters asserted that requiring an accessible 
vertical path of travel whenever alterations are made to staircases or 
escalators is a costly endeavor, and that some transit agencies may 
simply not make those alterations, thus allowing path of travel 
elements to fall out of a state of good repair. Further, commenters 
asserted that prioritizing accessibility over state of good repair 
would necessarily divert resources from state of good repair needs to 
elevator installations. FTA notes that accessibility and state of good 
repair are two critical responsibilities of transit agencies. In an 
arena of insufficient capital resources, priorities and choices must 
always be made. Accessibility is a civil right, and civil rights must 
be assured in all operating and capital decisions. State of good repair 
is also essential to the effective provision of service, particularly 
when the safety of all passengers--with and without disabilities--is 
dependent on the condition of infrastructure. It is the role of the 
transit agency management and governing board to balance both 
accessibility and state of good repair to ensure the civil rights and 
safety needs of all passengers and employees are met.
    On the subsection of ``Maximum Extent Feasible,'' a few commenters 
asserted we had redefined ``technically infeasible'' as physically 
impossible. That was not our intention; rather, we cited the definition 
of technical infeasibility found in section 106.5 of the DOT Standards. 
Given that we cited the definition without explanatory text, one 
commenter requested guidance on determinations for technical 
infeasibility or disproportionate cost. In response, we provided the 
necessary elements an entity must document to demonstrate technical 
infeasibility, which include a detailed project scope, coordination 
efforts where necessary and appropriate, a description of facility-
specific conditions, and a step-by-step discussion on how the entity 
determined the facility could not be made accessible. Entities have 
provided this information to FTA in the past to demonstrate technical 
infeasibility.
    Several commenters were concerned that FTA appeared to expand the 
definition of ``usability'' by referencing a court case in the text of 
the proposed Circular. We have removed the case reference, and provided 
guidance regarding the concept of usability consistent with the 
legislative history of the ADA and federal case law. Importantly, the 
legislative history of the ADA states that ``[u]sability should

[[Page 60231]]

be broadly defined to include renovations which affect the use of 
facility, and not simply changes which relate directly to access.'' \2\ 
Further, a facility or part of a facility does not have to be 
``unusable'' for an alteration to affect usability; resurfacing a 
platform or a stairway are alterations that make the platform or 
stairway safer and easier to use.\3\
---------------------------------------------------------------------------

    \2\ H. Rep. No. 485, 101st Cong., 2d Sess., Pt. 3, at 64 (1990), 
reprinted in 1990 U.S.C.C.A.N. 445, 487.
    \3\ See, e.g., Kinney v. Yerusalim, 9 F.3d 1067 (3d Cir. 1993).
---------------------------------------------------------------------------

    We have amended the subsection, ``Disproportionate Costs'' in 
response to comments. Many of the comments reflected a misunderstanding 
of the difference between 49 CFR 37.43(a)(1) and (a)(2), as discussed 
above, suggesting that FTA was adding a requirement for elevators when 
a stairway or escalator was repaired, as opposed to altered, and 
generally disagreeing that elevators are required irrespective of costs 
when a stairway or escalator is altered. In response, we cited the 
regulatory authority, reorganized the subsection, and retained the 
example of when the cost of adding an elevator would be deemed 
disproportionate and, therefore, not required.
    For the subsection, ``Accessibility Improvements When Costs Are 
Disproportionate,'' we refined the language and added more specific 
citations to the regulations and DOT Standards. One commenter expressed 
concern that the proposed language eliminated an agency's ability to 
limit the scope of an alteration along the path of travel to discrete 
elements that could be evaluated independently. In response, we 
included the text of section 37.43(g), which prohibits public entities 
from circumventing the requirements for path of travel alterations by 
making a series of small alterations to the area served by a single 
path of travel. We also removed irrelevant regulatory citations, 
specifically section 37.43(h)(2) and (3) because they were unnecessary 
to the discussion.
    On platform and vehicle coordination, several commenters requested 
clarification and further guidance for specific situations. In response 
to comments, we determined platform and vehicle coordination would be 
better served in a discussion separate from the other common issues 
with station platforms, so we reorganized the chapter and provided a 
new section entitled, ``Platform-Vehicle Coordination.'' In this 
section, we described level boarding in plain language, listed various 
ways to meet the Part 38 requirements, and provided photos of level 
boarding, mini-high platforms, bridge plates, and platform-based lifts.
    We received a number of comments related to rapid rail and light 
rail, specifically as to gaps and level boarding. In response, we added 
sections for rapid rail platforms and light rail platforms. The ``Rapid 
Rail Platforms'' section cites the gaps allowed by the regulation for 
new and retrofitted vehicles and new and key stations. The ``Light Rail 
Platforms'' section includes the gap requirements and provides a 
discussion related to platform heights and level boarding requirements 
in light rail systems.
    We have slightly reorganized the section, ``Intercity, Commuter, 
and High-Speed Rail Platforms,'' and provided further detail and 
clarification by adding regulatory citations and a link to DOT 
guidance. In addition, we added a subsection on ``Platform Width of New 
or Altered Platforms,'' which provides suggestions from DOT guidance.
    One commenter applauded the inclusion of Attachment 3-1, ``Rail 
Station Checklist for New Construction and Alterations.'' A few 
commenters expressed concern that the checklist could be misconstrued 
as requirements for the transportation facilities rather than a 
guidance tool to determine needs. Another commenter was concerned with 
the blurring of requirements and best practices in regards to the 
checklist.
    As we did throughout the final Circular, we connected each 
requirement to its relevant authority with citations to the regulation. 
Although there are requirements and standards contained in the 
checklist, use of the checklist itself is not a requirement. 
Accordingly, we amended the checklist title and stated that the 
checklist is ``optional.'' Other commenters stated the checklist 
included a number of erroneous citations and omitted several sections 
that are part of the DOT Standards. In response, we reviewed the 
citations to ensure accuracy and noted the checklist does not cover all 
of the DOT Standards. Another commenter asserted the accessible routes 
checklist was unusable without distances to compare with inaccessible 
routes. We did not provide distances because of local discretion and 
the variety of different contexts and possible situations. On signage 
at defined entrances, one commenter asked for clarification as to maps, 
and we specified signage must comply with DOT Standard 703.5. Another 
commenter pointed out that we used ``area of refuge'' and ``area of 
rescue assistance'' interchangeably, so we revised the text for 
consistency. Further, the commenter asked for guidance on what signs at 
inaccessible exits should look like and where they need to be placed. 
Because of the great variety of possibilities, we do not provide more 
specific guidance other than citing the International Building Code, 
which the DOT Standards follow as to accessible means of egress.
    One commenter noted the proposed Circular did not include guidance 
to transit facility operators regarding facility illumination levels or 
illumination quality, and requested the final Circular include this 
information. Given the Access Board has not issued specific ambient 
lighting standards for compliance under the ADA, we decline to include 
guidance on this topic in the final Circular.

E. Chapter 4--Vehicle Acquisition and Specifications

    Chapter 4 discusses accessibility requirements and considerations 
for acquiring buses, vans, and rail cars. We covered new, used, and 
remanufactured vehicles for various types of service, and then we 
provided considerations for each type. This chapter was initially 
titled, ``Vehicle Acquisition,'' but we revised the title to more 
accurately describe what is included in the chapter.
    We amended the organization and content of this chapter to align 
this chapter with the format of the subsequently published chapters and 
to respond to comments. For example, one commenter suggested the 
section on demand responsive systems follow the section on fixed route 
as it does in the regulations. In response, we changed the order of the 
sections. In the introduction to the chapter, we added a footnote that 
the Part 38 vehicle requirements closely follow the Access Board 
Guidelines set forth in 36 CFR 1192.
    One commenter suggested removing the word ``covers'' from the 
regulation subparts listed as redundant since they are requirements. We 
agreed and removed the word ``covers'' from the list of subparts, added 
text clarifying Part 38 contains technical design requirements, and 
clarified this chapter broadly covers crucial, often-overlooked 
accessibility elements. We also clarified that bus rapid transit (BRT) 
is covered under buses, and streetcars are covered under light rail 
operating on non-exclusive rights of way.
    One commenter suggested replacing usage of the term ``acquire'' 
with ``purchase or lease'' wherever applicable because using 
``acquire'' can lead to the impression the requirements in the chapter 
only apply to the purchasing

[[Page 60232]]

rather than leasing of vehicles. We retained use of ``acquire'' because 
its plain language meaning includes both purchasing and leasing, as 
evidenced by Part 37. Another commenter suggested explaining the 
relationship of Part 38 to the Access Board's regulations at 36 CFR 
part 1192. We added a footnote in the introductory paragraph of the 
chapter explaining that the vehicle requirements closely follow the 
Access Board guidelines. Another commenter suggested breaking Table 4.1 
into two tables, rail and non-rail, for legibility. We retained one 
table because the ``vehicle'' column specifies ``non-rail'' or ``rail 
car'' and it is clearer as one table.
    We received several comments on bus and van acquisition. A 
commenter objected to the inclusion of demand responsive service and 
equivalent service in this chapter. In response, we moved the 
discussion of demand responsive service to Chapter 7. We did retain a 
brief discussion of demand responsive bus and van acquisition in this 
chapter. We did so to explain that inaccessible used vehicles may be 
acquired, so long as the equivalent service standards in section 37.77 
are met. The commenter also objected to usage of the term ``designated 
public transportation'' in the chapter, and we removed the term because 
it was unnecessary, but we added it to Chapter 7 when defining ``demand 
responsive'' and ``fixed route.''
    We received several comments on the considerations for acquiring 
accessible buses and vans. On the topic of lifts, one commenter 
recommended separating from the discussion of design load weight the 
mention of safety factor, which is based on the ultimate strength of 
the material, because it was awkward. In response, we edited the 
discussion on lifts so the minimum design load and minimum safety 
factor language is easier to understand.
    On the topic of securement systems, several commenters objected to 
conducting tests or the use of ``independent laboratory test results'' 
for securement-system design specifications because they are rarely 
available, difficult for a transit agency to pursue, and not required 
by regulation. In response, we changed the language to an FTA 
recommendation that design specifications be in ``compliance with 
appropriate industry standards.'' We also added the recommendation to 
consult with other agencies that use the same securement system under 
consideration. Further, we added language on the purpose of securement 
systems, including that the securement system is not intended to 
function as an automotive safety device. Another commenter pointed out 
we included a reference to the ``versatility'' of a securement system 
for the ``Mobility Aids'' bullet point, which does not appear in the 
regulation. In response, we removed the reference to versatility. Under 
the bullet point for ``Orientation,'' a commenter suggested replacing 
``backward'' with ``rearward'' because it is more technically accurate 
and appropriate. We adopted this suggestion. Under the bullet point for 
``Seat belt and shoulder harness,'' a commenter suggested changes to 
the bullet point. We adopted these changes and revised ``seat belt'' to 
``lap belt'' to be more descriptive. Another commenter questioned our 
securement system example of short straps and ``S'' hooks and suggested 
using the example of a ``strap-type tie-down'' system. We adopted this 
suggestion in an effort to avoid confusion from the proposed language. 
The commenter also suggested replacing the reference to ``connecting 
loops'' with ``tether straps,'' a more recognizable term--we made the 
change based on this comment.
    We received several comments on the various rail car sections 
(rapid rail, light rail, and commuter rail). One commenter noted the 
omission of restroom accessibility requirements. In discussing the 
standards for accessible vehicles, we chose to highlight common issue 
areas, which includes doorway-platform gaps, boarding devices, priority 
seating signs, and between-car barriers. Several commenters asserted 
that level boarding is not always practical or feasible. Based on these 
comments, we determined boarding devices are an area of particular 
interest and included a subsection on them under considerations for 
light rail and commuter rail vehicles. We explained that where level 
boarding is not required or where exceptions to level boarding are 
permitted, various devices can be used to board and alight wheelchair 
users, including car-borne lifts, ramps, bridge plates, mini-high 
platforms, and wayside lifts.
    On the topic of priority seating signs, one commenter stated the 
requirement does not account for situations where priority seating and 
wheelchair seating occupy the same space or where the first forward-
facing seat is up a stair at the rear of a bus. In response, we 
clarified that aisle-facing seats may be designated and signed as 
priority seats, as long as the first forward-facing seats are also 
designated and signed as priority seating. One commenter noted it 
supplements priority seating signage with automated audible and visual 
messages that ask customers to leave priority seats unoccupied for 
seniors and persons with disabilities. In line with this comment, we 
clarified the language an agency places on its signs does not need to 
match exactly the text in section 38.55(a), but instead capture the 
general requirement.
    On the topic of between-car barriers, one commenter suggested 
adding text recognizing that track and tunnel geometry may prohibit the 
use of vehicle-borne between-car barriers. To clarify the discussion on 
between-car barriers, we revised and explained their purpose and the 
distinction between between-car barriers and detectable warnings. The 
commenter also suggested FTA include more information on design and 
standards for between-car barriers. We enhanced the discussion related 
to between-car barriers in light rail systems and added Figure 4-7 to 
illustrate various between-car barrier options. Notably, FTA issued a 
Dear Colleague letter on September 15, 2015, related to between-car 
barriers on light rail systems, available here: http://www.fta.dot.gov/newsroom/12910_16573.html.
    Chapter 4 uses multiple figures for illustration, and we received 
several comments on those figures. For Figure 4-1, which depicts the 
accessibility requirements for a bus that is 22 feet or longer, one 
commenter suggested labeling the clear path to or from securement 
areas. We revised the figure and added label ``E'' to denote the clear 
path to and from securement areas. For Figure 4-2, which depicts the 
exterior components of an accessible bus, a few commenters pointed out 
that the international symbol of accessibility, while helpful, is not 
required on buses as it is on rail cars. In response, we replaced the 
photograph with a diagram that does not include the international 
symbol of accessibility. Another commenter suggested adding an arrow 
pointing out the transition from ground to ramp. The diagram replacing 
the photograph indicates the transition from ground to ramp without the 
need for an arrow. For Figure 4-3, a photograph of a deployed lift, one 
commenter expressed difficulty in seeing what the arrows pointed to and 
suggested adding a label for ``Transition from ground to platform.'' In 
response, used a different photograph, and provided a label for that 
element and made the existing labels more accurate. We also lightened 
the background elements to draw attention to specific lift elements. 
For Figure 4-4, which depicts a securement and passenger restraint 
system, several commenters suggested removing unmarked angles from the 
figure; we agree the angles were unnecessary and

[[Page 60233]]

we removed them. Another commenter suggested the front tie-down in the 
diagram be shown attaching slightly higher so it is at the frame 
junction instead of at the footrest support. We edited the figure to 
incorporate this suggestion.
    We received several comments related to ensuring vehicles are 
compliant. One commenter suggested the reference to ``detailed 
specifications'' be changed to ``required specifications.'' We made 
this change because the specifications are required. A few commenters 
suggested more specificity with the requirements for measurements and 
tolerances because the language was too generalized. We added more 
specific measurements and tolerances where needed; for example, we 
specified that securement straps have required minimum load tolerances 
of 5,000 pounds rather than stating the straps have required minimum 
load tolerances. Another commenter pointed out the phrase, ``Sample 
Documentation of Test Results'' was present without any explanation or 
accompanying text. We removed the text because its inclusion was in 
error.
    On the topic of obtaining public input, one commenter suggested 
using an alternative phrase to, ``full-size sample.'' We revised the 
language to, ``partial, full-scale mockups'' to be more specific and 
avoid confusion. Another commenter suggested that in addition to public 
input, transit agencies involve their board members and staff. This may 
be an important process for a transit agency to have, but it is 
unrelated to the public input section and we did not include it in the 
final Circular. A couple of commenters disagreed with the ramp example 
used to illustrate that a transit agency may exceed the minimum 
requirements. They disagreed because ramps are a complex topic which is 
under continued discussion and study at the Access Board. In response, 
we used a simpler example of exceeding the minimum requirements: a 
transit agency acquiring buses with three securement locations when the 
minimum requirement is two securement locations.
    We received numerous comments on the checklist for buses and vans. 
Multiple commenters expressed support for the inclusion of checklists 
and found this checklist helpful. In line with our efforts to 
distinguish between requirements and good practices, we renamed the 
checklist to: ``Optional Vehicle Acquisition Checklist of Buses and 
Vans.'' A few commenters asked for a similar checklist for rail cars or 
other vehicle types, but we declined to include one because the bus and 
van checklist is designed to be only a sample; transit agencies may 
create their own checklists for buses, vans, or rail cars to ensure 
compliance with the regulations. In the section on securement areas, 
several commenters took issue with the mention of common wheelchairs as 
being incorrect or inappropriate, given the recent change in the 
regulation. We added a note clarifying the dimensions and weight of a 
common wheelchair still represent the minimum requirements for 
compliance in accordance with 49 CFR part 38. A few commenters also 
asked for an explanation of what ``average dexterity'' means. We 
declined to provide a standard or definition for this term and expect 
readers to use a plain language meaning. Another commenter pointed out 
the regulations require ``at least'' one or two securement locations 
and not only one or two, so we corrected the text to reflect this.

F. Chapter 5--Equivalent Facilitation

    Chapter 5 discusses equivalent facilitation, including the 
requirements for seeking a determination of equivalent facilitation, 
and provides considerations and suggested practices when submitting 
requests.
    This final Chapter remains largely unchanged from the proposed 
Chapter except for some reorganization and edits made for clarity and 
responsiveness to comments. Several commenters expressed support for 
inclusion of this chapter, and in particular the discussion of requests 
for and documentation of equivalent facilitation. One commenter asked 
for an explanation regarding the equivalent facilitation determination 
process. The commenter believed it was inconsistent to state that a 
determination pertains only to the specific situation for which the 
determination is made (and that each entity must submit its own 
request), yet the FTA Administrator is permitted to make a 
determination for a class of situations concerning facilities. In 
response, FTA notes the specific situation for which a determination of 
equivalent facilitation is made may be a class of situations, and where 
the Administrator makes such a determination, the determination will 
explicitly state it applies to a class of situations, in which case 
other transit agencies would not be required to submit new requests for 
equivalent facilitation for the same situation. We have added language 
to clarify this.
    Several commenters sought clarification on the type of information 
or materials that must be submitted to FTA in order to support a 
request for equivalent facilitation. A few commenters asked to whom 
these submissions must be sent. We added language specifying that the 
submissions are to be addressed to the FTA Administrator, and we 
request a copy be sent to the FTA Office of Civil Rights. A few 
commenters were concerned about costs of testing, particularly with 
mockups. We listed a mockup as an example of part of the evidence that 
may be presented with the submission, but we do not expect requestors 
to send mockups to FTA. Detailed information such as drawings, data, 
photographs, and videos are valuable forms of documentation and we 
encourage their inclusion in submission materials.
    One commenter expressed concern with the ``Dos and Don'ts'' section 
of this chapter, asserting we conflated requirements with 
recommendations, so we added ``suggested'' to the heading to make clear 
the included items are suggestions and not requirements.

G. Chapter 6--Fixed Route Service

    Chapter 6 discusses the DOT ADA regulations that apply specifically 
to fixed route service, including alternative transportation when bus 
lifts are inoperable, deployment of lifts at bus stops, priority 
seating and the securement area, adequate vehicle boarding and 
disembarking time, and stop announcements and route identification.
    The final chapter remains substantively similar to the proposed 
chapter. However, we moved several sections that applied across modes 
to other chapters to minimize repetition, and also made several changes 
based on specific comments.
    There were a few comments regarding alternative transportation 
requirements when a fixed route vehicle is unavailable because of an 
inoperable lift. These commenters noted the proposed Circular stated, 
``agencies must provide the alternative transportation to waiting 
riders within 30 minutes'' when a bus lift is inoperable, but implied 
the regulations were more flexible. In response, we substituted 
language with a direct quote from Appendix D, which provides examples 
for providing alternative transportation. We also added text explaining 
that with regard to ramp-equipped buses, FTA finds local policies to 
require drivers to manually deploy ramps instead of arranging 
alternative transportation acceptable because Part 38 does not require 
ramps to have a mechanical deployment feature. We merged the sections 
regarding alternative transportation when the driver knows the lift is 
not

[[Page 60234]]

working and when lifts do not deploy, because the requirements are the 
same for both.
    One commenter, discussing when a bus may not be available to riders 
because it is full, noted the description of a ``full'' bus should also 
include a bus where securement areas are already occupied by riders 
whom the driver has asked to move, but are unwilling to do so. In 
response, we added this point to the description of ``full.'' Some 
commenters asked what a transit agency must do if an individual is 
unable to board a bus because all of the wheelchair positions were 
full. We added text encouraging agencies to instruct drivers to explain 
the policy to waiting riders, so the riders do not believe they are 
being passed by.
    One commenter praised the text regarding deployment of lifts and 
ramps, specifically the suggestion that when a driver cannot deploy a 
lift or ramp at a specific location, the preferred solution is to move 
the bus slightly. This suggestion is now mirrored by 49 CFR part 37, 
Appendix E, Example 4, and we incorporated the example into the final 
Circular. Another commenter requested examples for what operators can 
do when passengers seek to disembark at a stop without accessible 
pathways. Example 4 also addresses this issue.
    There were many comments regarding priority seating. Commenters 
sought clarification regarding when bus drivers can ask individuals, 
including persons with disabilities or seniors, to move. We edited the 
text to make clear when the operator must ask individuals to move. We 
also explained that while operators must ask individuals to move, they 
are not required to enforce the request and force an individual to 
vacate the seat. However, we highlighted that agencies may adopt a 
``mandatory-move'' policy that requires riders to vacate priority 
seating and securement areas upon request, and encouraged agencies with 
these policies to inform all riders and post signage regarding these 
policies. Some of the priority seating comments noted the proposed 
chapters did not address situations in which the priority seats were 
also fold-down seats in the securement area. We edited the text to 
encourage transit agencies to develop local policies regarding whom 
drivers may ask to move from priority seats if an individual using a 
wheelchair needs the securement location.
    One commenter sought clarification as to whether operators are 
required to proactively assist seniors or persons with disabilities or 
whether the customers need to ask for assistance, citing concern for 
individuals without visible disabilities. We clarified that while the 
regulations do not require operators to proactively lead riders with 
disabilities or seniors to the priority seating area, we encourage 
local agencies to develop policies for drivers regarding serving riders 
who need assistance and not just those with apparent disabilities. One 
commenter provided an example of stroller and luggage policies on their 
vehicles. Consequently, we added a hyperlink to an example of a local 
policy governing the use of strollers in the securement space on its 
fixed route buses.
    Several commenters expressed concerns about adequate boarding time. 
Some of these commenters noted that agencies should institute pre-
boarding policies for individuals with disabilities who need to use the 
ramp or lift, to ensure that wheeled mobility device users were not 
denied service as a result of overcrowding. We maintained the text 
stating transit agencies may develop policies to allow riders with 
wheeled mobility devices to board first, but we added that transit 
agencies do not need to, and are not advised to, compel individuals on 
a vehicle to leave the vehicle to allow individuals with a wheeled 
mobility device to board. There were also comments related to ensuring 
individuals with disabilities are safely seated on a bus or rail 
vehicle before it moves, and conversely, commenters stated the 
discussion of this issue seems to assume individuals with disabilities 
require additional time to sit. Another commenter noted an operator may 
not always know that a rider has a disability. We edited the text to 
encourage transit agencies to develop wait-time standards or other 
procedures and instruct personnel to pay attention to riders who may 
need extra time, including those who use wheelchairs and others who may 
need extra time boarding or disembarking, rather than allowing time for 
riders with disabilities to be safely seated before moving the vehicle. 
We also added a suggestion for rail vehicles, where it is more 
difficult to have visual contact with riders: Instead of having drivers 
and conductors assess on their own how long it takes for a rider to 
board, transit agencies can establish local wait-time policies to give 
riders sufficient time to sit or situate their mobility device before 
the vehicle moves.
    There were a number of comments regarding stop announcements and 
route identification. Many commenters echoed the general comment that 
the proposed Circular instituted requirements for stop announcements 
not included in the regulations, specifically with announcing transfer 
route numbers and the ``ability to transfer'' at transit stops. We 
addressed these comments by making clear what is required and what is 
suggested and removing the use of the term ``should.'' Additionally, we 
removed the sentence suggesting route numbers be announced, and we 
specified that it is a suggestion, but not a requirement, to announce 
the first and last stops in which two routes intersect. Another 
commenter noted asking an agency employee for a stop announcement is 
not always possible. We added language encouraging riders to approach 
an agency employee ``when possible'' to request a stop announcement 
when boarding the vehicle. We also clarified that while the DOT ADA 
regulations have certain requirements for stop announcements, the 
selection of which locations are the major intersections and major 
destinations to be announced, or what are sufficient intervals to 
announce, are deliberately left to the local planning process. A few 
commenters also noted a transit agency may not know about all private 
entities that intersect with their routes and, therefore, it may be 
difficult to announce these entities during stop announcements. In 
response, we clarified that the requirement to announce transfer points 
with other fixed routes does not mean an agency must announce the other 
routes, lines, or transportation services that its stop shares--only 
that it announce the stop itself (e.g., ``State Street'' or ``Union 
Station'').
    One commenter noted that if an automated stop announcement system 
does not work, the operator must make the announcement. We added text 
stating the operator must make stop announcements if the automated 
announcement system does not work. Another commenter noted it would be 
challenging to test speaker volume in the field. In response, we note 
the suggestion to test speaker volume in the field is one of several 
suggestions provided, and it is not a requirement. We also added the 
DOT Standards requirement providing that where public address systems 
convey audible information on a vehicle to the public, the same or 
equivalent information must be provided in visual format, often in the 
form of signage displaying the route and direction of the vehicle.
    We clarified that transit agencies must sufficiently monitor 
drivers and the effectiveness of the announcement equipment to ensure 
compliance with the regulatory stop announcement requirements. There 
were also several comments about the sample data collection forms, 
stating FTA was

[[Page 60235]]

presenting this as a ``best example'' when it was only one example, and 
it could be interpreted as required. The form included in the proposed 
Circular was a resource and only one example of how to monitor stop 
announcements. A local agency, at its discretion, may choose to use it. 
In response to comments, we added text noting FTA recognizes there are 
many different ways of collecting data and monitoring compliance.
    One commenter asked us to clarify a sentence regarding rail station 
signage visibility requirements. We reworded this sentence to be 
clearer and to include regulatory text.

H. Chapter 7--Demand Responsive Service

    Chapter 7 discusses characteristics of demand responsive service; 
the equivalent service standard; and types of demand responsive 
service, including dial-a-ride, taxi subsidy service, vanpools, and 
route deviation service; and offers suggestions for monitoring demand 
responsive service. We have reorganized the chapter and made edits in 
response to comments.
    We received multiple comments on equivalent service. Several 
commenters expressed concern that the concepts of demand responsive 
service were being mixed with equivalent service and vehicle 
acquisition. In response, we reorganized this chapter to better explain 
the service requirements for demand responsive systems. First, we 
discussed characteristics of demand responsive systems. Next, we 
mentioned vehicle acquisition, which the regulations directly tie to 
demand responsive service requirements. Then, we discussed equivalent 
service, followed by coverage of types of demand responsive services. 
We revised the equivalent service discussion to specify that the 
equivalent service standard does not apply when a vehicle fleet is 
fully accessible, and we clarified the applicability of the section 
37.5 nondiscrimination requirements to all demand responsive services.
    A commenter expressed concern with a statement in the proposed 
chapter about equivalent service being ``the same'' implies ``the same 
or better,'' asserting it might result in preferential treatment for 
individuals with disabilities. In response, we emphasized in the final 
Circular that providing a higher level of service to individuals with 
disabilities would be a local decision, but equivalent service remains 
a regulatory requirement. That is, service must be at least 
``equivalent,'' though it may be better. When discussing restrictions 
or priorities based on trip purpose, a commenter suggested not using 
the phrase ``regardless of ability,'' so we reworded the concept.
    Following the equivalent service discussion, each type of demand 
responsive service is discussed with equivalency considerations for the 
respective service. For taxi subsidy service, we received comments 
expressing concern about the language on equivalency and monitoring, 
with one commenter suggesting it would effectively end all taxi subsidy 
service across the nation and hurt customers with disabilities. We 
disagree with this characterization. The entity administering a taxi 
subsidy program has the responsibility to ensure equivalent service, 
and can do this through a number of different methods as described in 
the final Circular. We recognize taxi service is generally subject to 
DOJ's Title III jurisdiction.
    Regarding route deviation service, we received comments requesting 
further clarification about the service requirements. We included 
additional discussion on service delivery options and inserted Table 
7.1, Service Delivery Options, to highlight the service options in a 
quick-reference table format. One commenter suggested modifying Figure 
7-1, which depicts route deviation service, to show a requested pickup 
or drop-off location with a dotted line, and we revised the figure to 
incorporate the suggestion. Several commenters had questions related to 
the subsection, ``Combining Limited Deviation and Demand Responsive 
Services to Meet Complementary Paratransit Requirements.'' In response 
to comments, we removed the discussion and added other subsections that 
clarify ways an agency can meet ADA requirements. We emphasized three 
route deviation-related service options, including comingling 
complementary paratransit and fixed route service on the same vehicle, 
and included a link to an FTA letter further explaining service 
options.
    Regarding other types of demand responsive service, we noted for 
innovative, emerging forms of transportation there may be applicable 
ADA requirements that may not be immediately clear. We added a 
suggestion to contact the FTA Office of Civil Rights for guidance on 
identifying applicable ADA requirements.
    We received a few comments on monitoring as it relates to demand 
responsive systems, and we incorporated these into the suggestions for 
monitoring service. One commenter objected to what it perceived as 
additional requirements to monitor and report on subrecipients. We 
added language explaining that agencies must monitor their service to 
confirm the service is being delivered consistent with the ADA 
requirements, and that FTA does not dictate the specifics of an 
agency's monitoring efforts. Another commenter asked if there were 
options for monitoring equivalency that were allowed or accepted other 
than the approaches in Table 7.2, ``Suggested Approaches for 
Determining Equivalency for Each Service Requirement.'' We note the 
approaches in Table 7.2 are suggestions and there are other ways to 
fulfill monitoring obligations. Another commenter suggested adding 
information about what it means for online service to be accessible. We 
added a reference to Chapter 2 in the section leading up to the table 
because Chapter 2 discusses accessible information in greater detail. 
Because the items in Table 7.2 focus on determining equivalency, in the 
final Circular we added additional suggestions for monitoring specific 
service types: Comingled dial-a-ride and complementary paratransit 
services, taxi subsidy services, and demand responsive route deviation 
services.
    Finally, we received a couple of comments on certification. One 
commenter requested FTA clarify the extent to which a state 
administering agency has a duty to confirm the statements made by grant 
subrecipients in connection with the certification process. In 
response, we added language clarifying that state administering 
agencies need to have review procedures in place to monitor 
subrecipients' compliance with certification requirements. Another 
commenter noted the section contained confusing cross-references and 
suggested we reexamine it for accuracy. We addressed this by using 
Appendix D language and a bulleted list with references to specific FTA 
program Circulars. The commenter also questioned why Attachment 7-1 was 
labeled as a sample certification if it was the same as the one found 
in Appendix C to Part 37. In response, in Attachment 7-1 we removed the 
word ``Sample'' from the title and removed the date line to mirror the 
Appendix C Certification of Equivalent Service.

I. Chapter 8--Complementary Paratransit Service

    Chapter 8 addresses complementary paratransit service delivery, 
including topics such as service criteria, types of service options, 
capacity constraints, and subscription and premium service.
    This chapter was reformatted and reorganized from the proposed 
chapter

[[Page 60236]]

to include new sections with regulatory text, and we made several 
changes and clarifications in response to comments.
    One commenter noted paratransit is not supposed to be a guarantee 
of ``special'' or ``extra'' service. We emphasized that any services 
beyond the minimum requirements are optional and local matters. We 
added a reference and link to FTA's existing bulletin ``Premium Charges 
for Paratransit Services'' to highlight further that premium services 
are not required, and if transit agencies provide premium services, 
they are permitted to charge an additional fee.
    A few commenters questioned why commuter service and intercity rail 
were not included in the list of entities excluded from complementary 
paratransit. In the final Circular we added the definitions for 
commuter rail and bus and intercity rail. These commenters also 
suggested the Circular include more explanation as to when a route 
called a ``commuter bus'' route may be required to provide paratransit 
service, and they suggested including FTA findings regarding this 
issue. We added a more thorough explanation, cross-referencing to 
Chapter 6, explaining why a case-by-case assessment by the transit 
agency is needed to determine whether a particular route meets the 
definition of commuter bus. We also provided a link to a complaint 
decision letter regarding the elements FTA examined to determine 
whether the service in question in the complaint was in fact commuter 
service.
    We received a number of comments regarding origin-to-destination 
service. Most of these comments questioned FTA's requirement for door-
to-door service, in at least some cases, which they asserted was 
related to the then-pending rulemaking on reasonable modification and 
not required by the DOT regulations. Commenters asserted the proposed 
Circular was essentially requiring door-to-door service and expanding 
service beyond the standard curb-to-curb service many transit agencies 
provide. Commenters also expressed concerns about the safety issues of 
leaving a vehicle unattended for a long period of time to provide door-
to-door service to an individual.
    As DOT has explained, the requirement for door-to-door service was 
not contingent upon the reasonable modification rulemaking, but rather 
rooted in Sec.  37.129. However, this argument is moot since DOT issued 
its final rule on reasonable modification subsequent to publication of 
Amendment 2 of the proposed Circular. The final rule, incorporated into 
Part 37, includes a definition of origin-to-destination consistent with 
the long-standing requirement (See 80 FR 13253, Mar. 13, 2015). We 
edited this section to incorporate the regulatory text, preamble text 
from the final rule on reasonable modification, and relevant examples 
from the new Appendix E to Part 37. We incorporated several Appendix E 
examples verbatim that address origin-to-destination issues, including 
a driver leaving a vehicle unattended.
    A few commenters requested clarification on the responsibilities of 
the transit agency to provide hand-to-hand attended transfers to riders 
on paratransit. We explained that if an agency requires riders to 
transfer between two vehicles to complete the complementary paratransit 
trip within that agency's jurisdiction, then the agency is required to 
have an employee (driver or other individual) wait with any riders who 
cannot be left unattended. But, we added specific language emphasizing 
that the requirement for attended transfers does not apply when an 
agency is dropping off a rider to be picked up by another provider to 
be taken outside the agency's jurisdiction.
    One commenter argued it is not accurate to state that ``double 
feeder'' service, a service where complementary paratransit is used to 
provide feeder service to and from the fixed route on both ends of the 
trip, is typically not realistic. We revised the text and added 
Appendix D text for clarification, which states ``the transit provider 
should consider carefully whether such a `double feeder' system, while 
permissible, is truly workable in its system.''
    A few commenters suggested clarifications to the figures regarding 
paratransit service areas, Figures 8-1 and 8-2, depicting bus and rail 
service areas, such as clarifying the terms in the figures and making 
the graphics easier to read and less blurry. We made these changes.
    There were a few comments regarding access to restricted 
properties. One commenter requested clarification on what to do in the 
case of a gated community. Another commenter questioned what recourse 
transit agencies and passengers have when a commercial facility limits 
access to paratransit vehicles. In response to these comments, we added 
a section entitled, ``Access to Private or Restricted Properties'' and 
added an Appendix E example from Part 37 that discusses transit 
agencies' obligations with respect to service to restricted properties. 
Another commenter stated passengers should be required to arrange 
access to locked communities or private property if they want to be 
picked up or dropped off in a restricted area. The Appendix E example 
specifically notes the possibility of the transit agency working with 
the passenger to get permission of the of the property owner to permit 
access for the paratransit vehicle.
    There were many comments regarding negotiating trip times with 
riders, mostly regarding drop-off windows and next day scheduling. Many 
commenters expressed that paratransit scheduling to drop-off time is 
not required, while one commenter supported scheduling to drop-off 
times. We revised the text to explain that a true negotiation considers 
the rider's time constraints. While some trips have inherent 
flexibility (e.g., shopping or recreation), other trips have 
constraints with respect to when they can begin (e.g., not before the 
end of the individual's workday or not until after an appointment is 
over). A discussion of the rider's need to arrive on time for an 
appointment will sometimes be part of the negotiation between the 
transit agency and the rider during the trip scheduling process. We do 
not prescribe specific scheduling practices an agency must adopt. 
Instead, we state simply that if trip reservation procedures and 
subsequent poor service performance cause riders to arrive late at 
appointments and riders are discouraged from using the service as a 
result, this would constitute a prohibited capacity constraint. 
Commenters expressed a related concern regarding a statement that 
transit agencies should not drop off riders before a facility opens. We 
revised the text to state more generally that FTA encourages transit 
agencies to establish policies to drop off riders no more than 30 
minutes before appointment times and no later than the start of 
appointment times, recognizing that it is the customer's responsibility 
to know when a facility opens.
    Several commenters requested clarification on next-day scheduling 
as to what ``no later than one day ahead'' means. One commenter 
suggested changing the text to ``on the day before,'' which we did, to 
make clear that scheduling can be done the day before, and not only 24 
hours before. A few commenters asked for clarification as to how late 
``the day before'' goes to, specifically for transit agencies that 
operate service past midnight. We maintained the text stating transit 
agencies with service past midnight must allow riders to schedule 
during normal business hours on the day before the trip, including for 
a trip that would begin after midnight. And we added

[[Page 60237]]

language specifying ``normal business hours'' means ``during 
administrative office hours'' and not necessarily during all hours of 
transit operations.
    There was also a comment regarding changing negotiated trip times. 
The commenter questioned to what extent leaving a voicemail is adequate 
to notify the passenger of a change in pickup time. We clarified that 
when voicemail is used for trip reservations, if an agency needs to 
negotiate the pickup time or window, they must contact the rider and 
conduct a negotiation. Any renegotiation situation is treated 
similarly, such that if the transit agency calls the rider, and the 
rider cannot be reached, the transit agency must provide the trip at 
the time previously negotiated. We also expanded the discussion on how 
call-backs relate to trip negotiation requirements.
    We added clarifications to the section on negotiating trip times. 
Transit agencies are permitted to establish a reasonable window around 
the negotiated pickup time, during which the vehicle is considered ``on 
time.'' We explained that FTA considers pickup windows longer than 30 
minutes to be unacceptable, as they cause unreasonably long wait times 
for service. We also included examples to describe the 30 minute 
window.
    A few comments regarding ``no strand'' policies sought 
clarification on the sentence that suggested providing a return trip, 
``even if later than the original schedule time,'' and requested FTA to 
state the ``no strand'' policies are optional. We edited the sentence 
to specify these policies are optional and that the return trip will 
typically be within regular service hours.
    We received several comments on paratransit fares. A few commenters 
were concerned about the fare rules regarding how to choose between the 
minimum alternative base fares for paratransit when there is more than 
one fixed route option. We clarified by adding Appendix D language 
specifying that the agency chooses the mode or route that the typical 
fixed route user would use. A few commenters questioned whether transit 
agencies using distance based fares on fixed route are required to vary 
paratransit fares as well. We clarified that transit agencies are not 
required to use distance based fares on paratransit, but must set the 
fares at no more than double the lowest full-price fixed route fare for 
the same trip. One commenter requested the citation for the regulatory 
requirement to provide free paratransit trips in situations with free 
fare zones. We provided the relevant regulatory citation. Another 
commenter suggested it should be pointed out that agency trips, or 
fares negotiated with social service agencies or other organizations, 
can be more than double the fixed route fare. We made this change. We 
also added text stating that FTA finds monthly passes on fixed route 
are considered discounts, and, therefore, cannot be used to calculate 
the maximum paratransit fare, which is capped at double the full-price 
fixed route fare.
    We received a number of comments regarding capacity constraints. A 
commenter requested clarification on the meaning of considering ``two 
closely spaced trips by the same rider so they do not overlap'' during 
scheduling. We added an example of when this occurs to better explain 
that scenario. Another commenter requested clarification that it is not 
a waiting list, and, therefore, not a capacity constraint, to tell 
riders they will provide the trip, but then state the transit agency 
will call back before ``X'' p.m. to give a precise time to the rider. 
We added language to more clearly explain what is and what is not a 
waiting list. We also added text specifying that as long as the call-
taker accepts the trip request and confirms the requested time with the 
rider, this is not a waiting list.
    Within the topic of capacity constraints, there were many comments 
on untimely service. On the topic of pickup windows, one commenter 
expressed it is important to point out that if the local agency has 
instituted a 5-minute waiting period for paratransit pickups, the 5 
minute wait cannot begin until the start of the pickup window. The text 
in the final Circular states this explicitly. In addition, there were 
several comments on assessing on-time performance. One commenter 
requested a clarification of what ``on-time'' means, and whether this 
includes only the 30 minute window or also early pickups. We edited the 
language to express that on-time is only within the 30-minute window, 
but service standards may evaluate on-time pickups and early pickups 
together by setting a goal of ``X'' percent of pickups will be on-time 
or early. Another commenter requested we include a standard for ``very 
early pickups'' in the Circular. While we did not add a specific 
standard, we provided examples of service standards some agencies have 
instituted for very early pickups.
    There were several comments on trip denials and missed trips. 
Regarding trip denials, one commenter expressed that when a trip is 
actually made, it cannot be counted as a denial, referring to DOT's 
September 2011 amendments to the regulation. We agree with the 
commenter, and clarified the language and linked to the preamble to the 
amendments. Regarding missed trips, we added more clarification on what 
constitutes a missed trip and provided examples. One commenter 
suggested it would be a good practice for dispatchers to ask drivers to 
describe the pickup location and document the description in case a no-
show is later questioned. We added the requested language. Another 
commenter requested substantiation for stating that a transit agency 
with a high rate of missed trips may not be able to arrive on time, 
possibly indicating the need to add capacity. We substantiated this 
statement based on complementary paratransit reviews completed by FTA's 
Office of Civil Rights.
    A few commenters stated that untimely drop-offs and poor telephone 
performance are not mentioned in the regulations, and are therefore 
only good practices and should be presented as such. We clarified why 
we consider these actions capacity constraints under the regulations, 
and, therefore, a requirement to ensure a transit agency is not 
allowing these situations to occur, and tied it to the relevant 
regulation at section 37.131(f)(3)(i).
    There were many comments about poor telephone performance, 
including call wait times and busy signals. One commenter requested we 
more directly address long hold times, and we clarified this section to 
focus more clearly on long hold times. A couple of commenters stated it 
is unclear what specific telephone hold times are required without 
actual numbers of minutes or percentages, and recommended FTA adopt a 
best practice standard for maximum hold times of two minutes. We did 
not set absolute maximum hold times; however, we added optional good 
practices of setting certain thresholds, and provided examples. For 
example, ``an optional good practice is to define a minimum percentage 
(e.g., X percent) of calls with hold times shorter than a specific 
threshold (e.g., two minutes) and a second (higher) percentage (e.g., Y 
percent) of calls with hold times shorter than a longer threshold 
(e.g., five minutes).'' We also added optional good practices for 
measuring averages over hourly periods. One commenter requested the 
Circular state that a rider should never encounter a busy signal, other 
than in rare emergency situations. FTA did not state explicitly that a 
rider should never encounter a busy signal, but we added 
recommendations about using telephone systems with sufficient capacity 
to handle all incoming calls, providing suggestions of how to avoid

[[Page 60238]]

busy signals, and stating that excessive wait times and hold times 
would constitute a capacity constraint.
    One commenter asked why steering eligible individuals to different 
services would be considered discouraging the use of complementary 
paratransit if the other service might serve the individual better. We 
deleted references to ``steering'' in the document and instead added 
language to clarify that while transit agencies may not discourage use 
of ADA complementary paratransit, which is a capacity constraint, it is 
a good practice to make people aware of their transportation options so 
they can make informed decisions. Making sure people are aware of their 
transportation options so that they can make informed decisions is very 
different from discouraging paratransit use. We added text stating FTA 
encourages agencies to coordinate their services with other services 
available to individuals with disabilities.
    Numerous commenters suggested that as long as an agency doesn't 
have capacity constraints, there should not be a limit on subscription 
service to 50 percent of an agency's paratransit service. While this 
language was included in the proposed Circular, in the final Circular 
we clarified the language, and added language stating FTA encourages 
transit agencies to maximize use of subscription service as long as 
there are no capacity constraints.
    One commenter noted will-call trips should be premium services, and 
asked for clarification. We edited the text to reflect that will-call 
trips are premium services and added them to the list of premium 
service provided in the, ``Exceeding Minimum Requirements (Premium 
Service)'' section. We also clarified in the earlier sections that 
will-call trips may be restricted by trip purpose and transit agencies 
may charge higher fares for these trips.
    Regarding complementary paratransit plans, a few commenters 
requested FTA provide reasons for requiring a plan when a system is not 
in compliance, and why there is no requirement for compliance with 
paratransit on the first day of a fixed route service. We edited the 
text in line with the regulations and FTA policy requiring 
implementation of complementary paratransit immediately upon 
introduction of a fixed route service, and not over time. Additionally, 
we added the regulatory support for requiring a complementary 
paratransit plan when a transit system is not in compliance with its 
paratransit obligations.
    A commenter suggested the section on public participation add a 
``good practice,'' stating when a transit agency proposes a reduction 
in service, the transit agency should consider a review similar to a 
Title VI analysis. We clarified that under 49 U.S.C. 5307 there are 
requirements for public comment on fare and service changes, and a 
major reduction in fixed route service must also include consideration 
of the impact on complementary paratransit service.
    We received many comments regarding the ``Monitoring and Data 
Collection'' section of this chapter, generally questioning the value 
of this section to the reader. Upon review, we concluded that many of 
the points were repetitive of earlier sections and removed the section 
from the Circular.

J. Chapter 9--ADA Paratransit Eligibility

    Chapter 9 discusses ADA paratransit eligibility standards, the 
paratransit eligibility process, the types of eligibility, 
recertification, and appeals processes, no-show suspensions, and issues 
involving personal care attendants and visitors.
    Several commenters asked for clarification on the dilemma between 
having mobility device weight restrictions and paratransit eligibility. 
We clarified that ADA paratransit eligibility is based on an 
individual's functional ability, and while the size or weight of a 
mobility device exceeding the vehicle's capacity is not grounds to 
reject paratransit eligibility, in some cases, an individual will be 
granted eligibility, but cannot be transported on a transit agency 
vehicle. We added language stating the vehicle capacity should be 
communicated to the rider, and the individual's eligibility will be 
maintained, so if the individual later obtains a smaller or lighter 
mobility device, he or she will be able to be transported.
    A few commenters inquired regarding the role of the age of children 
in paratransit eligibility. One commenter suggested specifying that 
policies limiting the availability of transit service to children 
cannot be imposed solely on the paratransit system. Another commenter 
stated an agency's fare policies should not be indicative of a child's 
ability to travel on fixed route, and a reasonable person standard 
should apply: Whether a child can travel independently without the 
assistance and supervision of an adult is set not to a certain age, but 
to what a reasonable person would conclude. Several commenters asserted 
these policies should be decided at the local level because eligibility 
requirements must be ``strictly limited'' and based solely on ``an 
individual's ability.'' We clarified the language to state transit 
agencies can set requirements on what age children must be accompanied 
by an adult based on the age a child is able to use fixed route 
independently. This age requirement must be uniform across fixed route 
and paratransit. We also clarified that fare policies alone, such as 
providing that children under a certain age ride free, or children 
accompanied by an adult ride free, do not set a requirement for a child 
to be accompanied by an adult, and, therefore, do not extend to 
paratransit policies.
    One commenter wondered why a discussion of individuals with 
psychiatric disabilities who may not be able to travel in unfamiliar 
areas would be found paratransit eligible under two different 
categories of eligibility. We clarified that these individuals may be 
eligible for multiple reasons.
    One commenter stated that eligibility based on current functional 
ability may lead to confusion about impairment-related conditions that 
vary from time to time. We added language stating it would be 
inappropriate to deny eligibility to someone with a variable disability 
if the assessment happened to take place on a ``good day,'' and transit 
agencies should consider that an individual's functional ability may 
change from day to day because of the variable nature of the person's 
disability.
    One commenter requested FTA note the qualification for a half-fare 
discount under 49 U.S.C. 5307 for seniors and riders with disabilities 
does not have a bearing on one's complementary paratransit eligibility. 
We added a section explaining that the standards for half-fare 
eligibility are different from the paratransit eligibility 
requirements, and half-fare eligibility does not automatically give the 
rider ADA paratransit eligibility.
    There were a few comments regarding conditional paratransit 
eligibility. Commenters emphasized that in the section discussing the 
necessity for conditional eligibility for individuals where hot or cold 
weather exacerbates their health conditions to the point that they are 
unable to use fixed route, it should be clarified that it is the local 
agency's decision what the temperature thresholds are. We added a 
footnote explaining that the Circular text provides specific examples 
of temperatures where it may be ``too hot;'' establishing different 
thresholds for specific regions is appropriate because climates vary 
from region to region. Another commenter noted conditional eligibility 
should not be limited based on trip purpose. We added text specifying 
that giving eligibility to individuals for ``dialysis trips only'' is

[[Page 60239]]

not appropriate, but granting eligibility to an individual who is 
suffering from severe fatigue from a medical condition or treatment is 
appropriate.
    A commenter requested FTA clarify that while confidentiality in 
paratransit eligibility is vital, agencies can still tell drivers that 
riders need particular types of assistance. We added text noting an 
optional good practice for transit agencies is to add necessary 
information to the manifest that the operators may need to safely serve 
the rider, without including specific information on the nature of the 
rider's disability.
    Regarding the eligibility determination process, we emphasized that 
local agencies devise the specifics of their process, including how and 
when they will conduct functional assessments, within the broad 
requirements of the regulations. One commenter requested the Circular 
go more in depth on having assessments conducted by professionals 
trained to evaluate the disabilities at issue. We added text, including 
support from Appendix D, stating while the ultimate determination is a 
functional one, medical evaluation from a physician may be helpful to 
determine the ability of the applicant, particularly if a disability is 
not apparent. We also stated that the professional verification is not 
limited to physicians, but may include other professionals such as 
mobility specialists, clinical social workers, and nurses, among 
others. Several commenters requested specific guidance regarding 
appropriate assessments and eligibility applications, including sample 
applications and assessments. We provided links to Easter Seals Project 
Action, which provides information on implementing functional 
assessments, administering the Functional Assessment of Cognitive 
Transit Skills (FACTS), and other technical assistance materials.
    A couple of commenters suggested adding information regarding 
making applications available in alternative formats. We added relevant 
language from Appendix D regarding alternative formats and deleted the 
suggestion that transit agencies ask applicants if they want future 
communications in alternative formats to prevent a reader from 
concluding that providing an accessible format is optional when a rider 
needs it. We also added information regarding the Title VI Limited 
English Proficiency (LEP) requirements for complementary paratransit, 
which ensure that those who do not speak English as their primary 
language can access paratransit services. This was added for 
consistency with a similar section in Chapter 8.
    One commenter indicated the content on identification cards for 
paratransit eligibility should be left to local agencies. We clarified 
that the decision of whether to have identification cards and the 
content on them are local decisions, but if the card does not contain 
all the information required by section 37.125(e) (e.g., name of 
passenger, name of transit agency, limitations or conditions on 
eligibility, etc.), then letters of determination with the required 
information must be provided to the passenger.
    We clarified that FTA considers any determination less than 
unconditional eligibility, such as conditional and temporary 
eligibility, to be forms of ineligibility. Therefore, transit agencies 
must send letters regarding appeals to any applicant that receives any 
type of eligibility less than unconditional eligibility.
    There were several comments regarding recertification. One 
commenter requested clarification of what is a ``reasonable interval'' 
between eligibility determination and recertification. We added 
language from Appendix D explaining that requiring recertification too 
frequently would be burdensome to riders. Another commenter requested 
information regarding what steps a transit agency should take for 
recertification under a new or revised process. We added language 
encouraging agencies to consider the impact on riders when they tighten 
eligibility processes.
    There were many comments regarding the paratransit eligibility 
appeals process. We noted that transit agencies must inform riders they 
have the right to appeal any eligibility denial and added text 
explaining that riders can reapply for eligibility at any time. Many of 
these commenters stated the draft text encouraging transit agencies to 
provide free transport to and from paratransit appeals was not 
appropriate, and it was not required, and, therefore, should not be 
included in the Circular. A few comments supported FTA's inclusion 
encouraging free transport to and from paratransit appeals. While it 
was only a recommendation, we removed the text encouraging free 
transport, instead encouraging agencies to ``ensure that hearing 
locations are easy for appellants to reach.''
    Another commenter indicated the draft text was ambiguous regarding 
transit agencies arranging appeals without unreasonable delays. We 
clarified the statement by recommending that, although the regulations 
do not specify a deadline for which agencies must hold an in-person 
appeal after an applicant requests a hearing, FTA encourages transit 
agencies to hold the appeal hearings promptly and suggests that 
hearings be held within 30 days of the request. A couple of commenters 
requested clarification regarding who can be on an appeals panel, 
specifically requesting FTA to specify that although someone hearing an 
appeal should not represent one particular point of view, it is 
acceptable to have an impartial employee of the transit agency 
participate in the appeals hearing. We edited the text to note if 
transit agency staff or members of the disability community are 
selected to hear paratransit eligibility appeals, it is important for 
them to remain impartial.
    There were many comments regarding personal care attendants (PCAs). 
A couple of commenters noted the terminology was inconsistent 
throughout, and requested the references to ``personal attendants'' be 
changed to ``personal care attendants.'' We edited the relevant text in 
Chapters 8 and 9 to consistently reference ``personal care 
attendants.'' Many commenters questioned the draft text stating that if 
a rider needs a PCA during the eligibility process that may be an 
indication the paratransit rider must be ``met at both ends of the 
trip'' and ``never left unattended.'' Commenters argued the language 
was inaccurate because there is no requirement for a paratransit rider 
not to be left unattended or met at both ends of the trip. We deleted 
this sentence as it was inconsistent with the regulations and policy, 
and clarified that a transit agency cannot impose a requirement for a 
rider to travel with a PCA. We also clarified the reasoning for asking 
during the eligibility process whether a complementary paratransit 
applicant needs a PCA or not, which is to ``prevent potential abuse'' 
of the provision. By documenting a rider's need for a PCA during the 
eligibility process, the agency can determine if an individual 
traveling with the rider is a PCA or a companion, which in turn 
simplifies determining required fares. One commenter noted the 
regulation is singular, and, therefore, transit agencies are only 
required to provide each paratransit eligible rider with one PCA. We 
amended the language to state each rider is only entitled to travel 
with one PCA. Likewise, another commenter asked FTA to clarify that 
while transit agencies are required to accommodate only one companion 
per paratransit eligible rider, the regulations also require the 
transit agency to accommodate additional companions if space is 
available. We added text

[[Page 60240]]

reflecting this requirement. A few commenters requested that FTA reword 
the sentence saying transit agencies are encouraged to ``make it easy 
for riders to reserve trips with PCAs and not require that they re-
apply'' if they previously did not need a PCA and now require one. We 
deleted this sentence as it did not add value as a recommendation.
    We received several comments praising regional paratransit 
eligibility approaches and encouraging FTA to support this concept. In 
response, we added a section entitled, ``Coordination of Eligibility 
Determination Processes,'' and stated FTA encourages transit agencies 
to coordinate eligibility determinations to make regional travel easier 
for customers.
    There were many comments regarding no-show suspensions. One 
commenter requested that the Circular provide specific guidance on how 
suspensions for no-shows should be calculated, and what constitutes a 
no-show outside the passenger's control. We addressed these items by 
providing the regulatory text and examples of when no-shows are outside 
the passenger's control, and providing examples of no-show policies 
that lead to suspensions. We also added language specifying that 
agencies are permitted to suspend riders who establish a pattern or 
practice of missing scheduled trips, but only after providing a rider 
with due process. In the case of no-show suspensions, due process means 
first notifying the individual in writing of the reasons for the 
suspension and of their right to appeal as outlined in section 
37.125(g). We also added language specifying the purpose of no-show 
suspensions, which is to deter chronic no-shows. We explained that 
transit agencies must consider a rider's frequency of use in order to 
determine if a pattern or practice of no-shows exist and recommended a 
two-step process for determining pattern or practice. We also clarified 
that FTA recommends the no-show suspension notification letters inform 
riders that no-shows beyond their control will not be counted, and we 
provided examples of how riders can explain the no-shows outside of 
their control. We recommended transit agencies have ``robust 
procedures'' to verify the no-shows were recorded accurately.
    Many of the comments on the topic of no-show suspensions challenged 
the proposed Circular statement, ``FTA considers suspensions longer 
than 30 days to be excessive under any circumstance.'' Commenters 
argued this is not based in regulation, and in some instances, 
suspensions longer than 30 days are necessary for repeat offenders of 
the no-show policy. We edited this text to state, ``While it is 
reasonable to gradually increase the duration of suspensions to address 
chronic no-shows, FTA generally considers suspensions longer than 30 
days to be excessive.'' We also added language clarifying that FTA 
requires suspensions to be for reasonable periods, and FTA considers up 
to one week for a first offense to be reasonable.
    One commenter requested clarification regarding when an applicant 
can independently and consistently ``remain safe when traveling 
alone.'' The commenter noted this contradicts an earlier statement in 
Chapter 9 that general public safety concerns are not a factor in 
paratransit eligibility. In the final Circular, we have clearly 
distinguished between general public safety concerns, such as traveling 
at night or in high crime areas, from an individual's personal safety 
skills, such as an individual whose judgment, awareness and 
decisionmaking are significantly affected by a disability and who would 
therefore be at unreasonable risk if they attempted to use the fixed 
route independently.

K. Chapter 10--Passenger Vessels

    Chapter 10 discusses nondiscrimination regulations related to 
passenger vessels, including accessible information for passengers of 
passenger vessels, assistance and services, and complaint procedures.
    Chapter 10 remains substantially similar to the proposed chapter, 
with the primary exceptions of technical corrections and 
clarifications, and the addition of a few Part 39 provisions that were 
not included in the proposed chapter, but which commenters pointed out 
were relevant.
    Many commenters inquired as to which passenger vessel operators 
(PVOs) were addressed by the Circular. We edited the text to more 
clearly reflect which PVOs the Circular addresses. One commenter 
requested that we clarify whether Part 39 applies to only U.S. ships or 
also foreign flagged vessels. We edited the text to make clear the 
Circular does not address U.S. or foreign flag cruise ships. One 
commenter also pointed out that with respect to private PVOs operating 
under contract to public entities, a dock that received Federal 
financial assistance would not fall under PVO rules if the vessel was 
not covered. In response, we removed the term ``and facilities'' from 
the section discussing services using vessels acquired with FTA grant 
assistance.
    Several commenters also responded to the Part 39 nondiscrimination 
provisions. A few commenters suggested the sentence stating that 
passengers with disabilities cannot be excluded from participating or 
denied the benefits of transportation solely because of their 
disability was an inaccurate interpretation of the regulations because 
individuals with disabilities can be excluded from PVOs for many 
reasons based on their disabilities. The commenters also challenged the 
draft text regarding what PVOs cannot do, for example, require medical 
certificates or advance notice of travel from passengers with a 
disability, because under certain conditions PVOs can require these. 
While operators of public ferry service, in practice, would rarely if 
ever deny service on these grounds, we added sections discussing the 
applicable regulations, including refusing service to individuals with 
disabilities (10.2.2), refusing service based on safety concerns 
(10.2.3), requiring passengers to provide medical certifications 
(10.2.4), limiting the number of passengers with disabilities on 
vessels (10.2.5), and requiring advance notice from passengers with 
disabilities (10.2.6).
    One commenter noted that in the section regarding auxiliary aids 
and services, the proposed Circular included a statement that 
passengers needing a sign language interpreter should make this request 
early. The commenter asked for this to be deleted because PVOs are not 
required to provide sign language interpreters. We deleted this 
sentence because the types of trips addressed by this Circular are 
generally short and individuals would not require sign language 
interpreters.
    Regarding service animals, one commenter noted the regulations and 
definitions for service animals in the DOT (49 CFR part 39) and DOJ (28 
CFR part 36) regulations are confusing because they are different, and 
PVOs are often unsure which to follow. We clarified that the service 
animal definition for DOT in Part 39 in the water transportation 
environment is different from DOT's Part 37 definition. We included a 
link to guidance regarding ADA requirements for passenger vessels that 
addresses service animals, which explains that DOT interprets the 
service animal provisions of Part 39 to be consistent with DOJ's 
service animal provisions.
    Similarly, we clarified that the relevant regulations and 
definition for wheelchairs and other assistive devices on passengers 
vessels are also found in Part 39, and different from the definitions 
provided in Part 37.

[[Page 60241]]

L. Chapter 11--Other Modes

    Chapter 11 discusses other modes, including the general 
requirements for vehicles not otherwise mentioned in the Circular or 
covered by Part 38, as well as mode-specific requirements for certain 
types of vehicles. Vehicles referred to in this chapter include high-
speed rail cars, monorails, and automated guideway transit, among other 
systems.
    This chapter is considerably shorter than the proposed chapter. One 
of the few comments we received noted the chapter lacked discussion. We 
agreed with the comment, and in the absence of recommendations for 
tailoring the chapter, we removed several sections that were largely 
composed of lists referring to regulatory sections and instead broadly 
summarized the requirements and directed the reader to the regulations 
for the specific technical information.

M. Chapter 12--Oversight, Complaints, and Monitoring

    Chapter 12 discusses FTA's oversight of recipients and enforcement 
processes, onsite review information, and complaint process. It also 
discusses requirements and suggestions for the transit agency complaint 
process, and requirements and suggestions for transit agency monitoring 
of its services. Chapter 12 remains substantially similar to the 
proposed chapter, although we made changes based on DOT's issuance of 
the reasonable modification final rule and in response to comments.
    The DOT final rule on reasonable modification amended the 
longstanding local complaint procedure requirements in 49 CFR 27.13, 
and then mirrored that provision in a new section 37.17. The rule added 
specific requirements that transit agencies must incorporate into their 
complaint procedures. For example, agencies must now sufficiently 
advertise the process for filing a complaint, ensure the process is 
accessible, and promptly communicate a response to the complainant. We 
revised sections to capture these new requirements, quoting the new 
regulatory text. We also edited slightly the Sample Comment Form 
attachment to illustrate how agencies may use such a form to collect 
ADA complaints consistent with the final rule.
    We received several specific comments on the chapter. One commenter 
suggested that viewing compliance review reports are helpful to improve 
service delivery. In response, we added a link to our Civil Rights 
Specialized Reviews Web page on the FTA Web site. Another commenter 
noted while the Circular discusses finding agencies ``compliant,'' what 
FTA actually does is find that agencies lack deficiencies. We edited 
the text to incorporate the deficiency focus.
    One commenter, discussing FTA's administrative enforcement 
mechanisms, stated that FTA should not be interpreting the provisions 
of 49 CFR 27.125, which provides steps FTA can take in response to 
deficiencies. Another commenter noted the Circular should not discuss 
suspension or termination of financial assistance, or alternatively 
consider intermediate steps such as voluntary arbitration or mediation, 
because suspension and termination are contrary to FTA's goals. In 
response, we restated the regulatory requirements for suspending or 
terminating Federal financial assistance.
    Regarding FTA grant reviews, one commenter requested that the 
section be revised to offer guidance on the content of the reviews, 
including the scope of the reviews and how to prepare for them. Upon 
consideration, we have removed this section from the chapter, since 
grant reviews are not part of our oversight program.
    There were several comments regarding the FTA complaint process. We 
clarified that FTA also processes ADA complaints against non-grantees 
in accordance with Part 37 and added the relevant Appendix D language 
for explanation. Commenters noted that complaint decision letters are 
only relevant to specific situations and are not legally equivalent to 
regulations, and suggested FTA clarify the responses are only 
applicable to specific situations and do not create new requirements. 
In response, we explained that complaint determinations are applicable 
only to specific facts in question and are not necessarily applicable 
to other situations and that references to complaint responses in the 
Circular serve as illustrative examples of how regulations were applied 
by FTA in specific instances.
    In response to a comment requesting that FTA notify the grantee 
whenever a complaint is filed against it, we explained that we contact 
the grantee when we investigate a complaint and noted our discretion 
for accepting complaints for investigation. We also added a section 
explaining the criteria FTA uses to close complaints administratively, 
a process that typically does not include outreach or notification to 
the grantee. The administrative closure bases were taken from FTA's 
Title VI Circular and are consistent with how FTA closes cases across 
its civil rights programs.
    A few commenters noted requiring corrective action based on 
deficiency findings within 30 days of receipt of the corrective action 
letter is not required by regulations and is inappropriate. We edited 
the text to clarify FTA typically requests a response from the transit 
provider within 30 days outlining the corrective actions taken or a 
timetable for implementing changes--if correcting a deficiency takes 
longer, a timetable for corrective action is appropriate.
    There were several comments regarding the transit agency complaint 
processes. One commenter requested guidance regarding methods transit 
agencies can take to resolve customer complaints. As a result of the 
new complaint process requirements for transit agencies provided in the 
final rule on reasonable modification, we added information regarding 
the transit agency complaint process. Several of the new sections 
directly respond to this comment by providing additional information 
regarding how local transit agencies can act to resolve complaints, 
including information regarding designation of a responsible employee 
for ADA complaints, changes to the requirements regarding complaint 
procedures, and communicating the complaint response to the 
complainant. We also added language cautioning transit agencies against 
directing local complaints to contracted service providers for 
resolution, as it is the agency's responsibility for ADA compliance. In 
addition, we provided additional guidance highlighting that agencies 
can use the same process for accepting and investigating ADA and Title 
VI complaints.
    We emphasized that local transit agencies have flexibility to 
establish the best formats for receiving ADA complaints, and provided 
information regarding different formats agencies may choose to use.
    A commenter requested additional guidance regarding publishing the 
name of the designated ADA coordinator. We clarified that while an 
individual must be designated as the ``responsible employee'' to 
coordinate ADA compliance, the individual can be publicized by title as 
opposed to by name, for example, ``ADA Coordinator.'' Another commenter 
provided a list of information that could be helpful in investigating 
complaints. We incorporated the list into an already existing list.
    Several commenters argued broadly that monitoring is not required 
in the regulations, and, therefore, FTA cannot impose the requirement 
on local agencies. Similar comments were made specific to Chapter 12. 
We added

[[Page 60242]]

language in Chapter 12 noting that transit agencies must monitor their 
service in order to confirm internally, and in some cases to FTA during 
oversight activity, that service is being delivered consistent with ADA 
requirements. Recipients must similarly ensure compliance of their 
subrecipients. However, we also state clearly that FTA does not dictate 
the specifics of an agency's monitoring efforts and that approaches for 
monitoring will vary based on the characteristics of the service and 
local considerations. This is our main point when it comes to 
monitoring. We therefore shortened the section and removed portions we 
determined were overly broad since we did not receive feedback to 
tailor the discussion to local practices. We retained the table that 
cross-references monitoring discussions found in other chapters to 
assist the reader in locating the information.

Therese W. McMillan,
Acting Administrator.
[FR Doc. 2015-25188 Filed 10-2-15; 8:45 am]
 BILLING CODE P