37.57 Required cooperation.
An owner or person in control of an intercity or commuter rail station shall
provide reasonable cooperation to the responsible person(s) for that station
with respect to the efforts of the responsible person to comply with the
requirements of this subpart.
This section implements §242(e)(2)(C) of the ADA, which
treats as discrimination a failure, by an owner or person in control of an
intercity rail station, to provide reasonable cooperation to the responsible
persons' efforts to comply with accessibility requirements. For example,
the imposition by the owner of an unreasonable insurance bond from the responsible
person as a condition of making accessibility modifications would violate
this requirement. See H. Rept. 101-485 at 53.
The statute also provides that failure of the owner or person in control
to cooperate does not create a defense to a discrimination suit against the
responsible person, but the responsible person would have a third party action
against the uncooperative owner or person in control. The rule does
not restate this portion of the statute in the regulation, since it would
be implemented by the courts if such an action is brought.
Since cooperation is also a regulatory requirement, however, the Department
could entertain a section 504 complaint against a recipient of Federal funds
who failed to cooperate.
The House Energy and Commerce Committee provided as an example of an action
under this provision a situation in which a failure to cooperate leads to
a construction delay, which in turn leads to a lawsuit by an individual with
disabilities against the responsible person for missing an accessibility
deadline. The responsible person could not use the lack of cooperation
as a defense in the lawsuit, but the uncooperative party could be made to
indemnify the responsible for damages awarded the plaintiff. Also,
a responsible person could obtain an injunction to force the recalcitrant
owner or controller of the station to permit accessibility work to proceed.
This provision does not appear to be intended to permit a responsible person
to seek contribution for a portion of the cost of accessibility work from
a party involved with the station whom the statute and §37.49 do not
identify as a responsible person. It simply provides a remedy for a
situation in which someone impedes the responsible person's efforts to comply
with accessibility obligations.