[Federal Register Volume 63, Number 187 (Monday, September 28, 1998)]
[Rules and Regulations]
[Pages 51670-51694]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-25421]
[[Page 51669]]
_______________________________________________________________________
Part III
Department of Transportation
Office of the Secretary
49 CFR Parts 37
Transportation for Individuals With Disabilities; Final Rule
Architectural and Transportation Barriers Compliance Board
36 CFR Part 1192
49 CFR Part 38
Americans With Disabilities Act Accessibility Guidelines for
Transportation Vehicles; Over-the-Road Buses; Joint Final Rule
Federal Register / Vol. 63, No. 187 / Monday, September 28, 1998 /
Rules and Regulations
[[Page 51670]]
DEPARTMENT OF TRANSPORTATION
49 CFR Part 37
[Docket OST-98-3648]
RIN 2105-ACOO
Transportation for Individuals With Disabilities
AGENCY: Office of the Secretary, DOT.
ACTION: Final rule; request for comments.
-----------------------------------------------------------------------
SUMMARY: The Department is amending its Americans with Disabilities Act
(ADA) regulations to require the accessibility of new over-the-road
buses (OTRBs) and to require accessible OTRB service. The new rule
applies both to intercity and other fixed-route bus operators and to
demand-responsive (i.e., charter and tour) operators. The rules require
operators to ensure that passengers with disabilities can use OTRBs. In
connection with the forthcoming Office of Management and Budget (OMB)
review of information collection requirements, the Department is
requesting comment on the information collection requirements section
of the final rule.
DATES: This rule is effective October 28, 1998. Comments on the
information collection provisions of Sec. 37.213 are requested on or
before [90 days from December 28, 1998], but late-filed comments will
be considered to the extent practicable. Comments are not requested on
any other portion of the rule.
ADDRESSES: Comments should be sent, preferably in triplicate, to Docket
Clerk, Docket No., Department of Transportation, 400 7th Street, S.W.,
Room PL-401, Washington, D.C., 20590. Comments will be available for
inspection at this address from 10:00 a.m. to 5:00 p.m., Monday through
Friday. Commenters who wish the receipt of their comments to be
acknowledged should include a stamped, self-addressed postcard with
their comments. The Docket Clerk will date-stamp the postcard and mail
it back to the commenter.
FOR FURTHER INFORMATION CONTACT: Robert C. Ashby, Deputy Assistant
General Counsel for Regulation and Enforcement, Department of
Transportation, 400 7th Street, S.W., Room 10424, Washington, D.C.,
20590. (202) 366-9306 (voice); (202) 755-7687 (TDD),
bob.ashby@ost.dot.gov (e-mail); or Donald Trilling, Director, Office of
Environment, Energy, and Safety, same street address, Room 10305H,
(202) 366-4220.
SUPPLEMENTARY INFORMATION: For purposes of the Americans with
Disabilities Act (ADA), an OTRB is ``a bus characterized by an elevated
passenger deck located over a baggage compartment'' (Sec. 301(5)). The
Department's ADA regulation (49 CFR 37.3) repeats this definition
without change. OTRBs are a familiar type of bus used by Greyhound and
other fixed-route intercity bus carriers as well as charter and tour
operators.
As provided by the ADA, the Department issued limited interim OTRB
regulations with its 1991 final ADA rules. The statute originally
provided for the Department to issue final regulations by mid-1994,
which would go into effect in July 1996 for larger operators and July
1997 for smaller operators. The Department fell behind the statutory
schedule. In recognition of this fact, Congress amended the ADA in 1995
to put the final rules into effect two years from the date of their
issuance (three years for small entities). Secretary of Transportation
Rodney Slater made issuance of OTRBs a Departmental priority,
committing the Department to issuing a proposed rule in March 1998 and
a final rule in September 1998. The Department issued its proposed rule
on March 25, 1998 (63 FR 14560). With this September 1998 publication
of the final rule, its provisions will begin to apply to large entities
in October 2000 and to small entities in October 2001.
Previous Regulatory Activity
In October 1993, the Department issued an advance notice of
proposed rulemaking (ANPRM) that asked a variety of questions about the
scope of accessibility requirements, interim service requirements,
operational and fleet composition issues, lavatories and rest stops,
training, and economic issues concerning OTRBs. Also in the autumn of
1993, the Department convened a public meeting at which DOT staff
discussed OTRB issues with representatives of the disability community
and OTRB industry. On various occasions, former Secretary of
Transportation Federico Pena, Secretary of Transportation Rodney Slater
and other DOT officials have met with disability community and bus
industry groups to discuss the issues involved.
It was clear from responses to the ANPRM, the public meeting, and
written comments that the bus industry and disability community had
quite different views of the course the Department should follow in
these regulations. The disability community believed that all new OTRBs
should be accessible. The bus industry advocated a so-called ``service-
based'' approach, involving such elements as a small pool of accessible
buses, alternate means of access (e.g., station-based lifts and
scalamobils), and on-call service. In support of its position, the
disability community cited the accessibility requirements of other
transportation provisions of the ADA, which uniformly require new
vehicles to be accessible, and gaps and inequalities in service that
they believe the industry approach would create. In support of its
position, the industry cited the higher costs of purchasing and
operating accessible vehicles, their projections that demand for
accessible service would be low, the economic problems of the intercity
bus industry, assertions that bus companies would cut rural and other
marginal routes in response to accessibility requirements, and their
view that their approach is more cost-effective.
The Department's NPRM proposed that all new OTRBs used in fixed-
route service had to be accessible. The NPRM did not propose to require
retrofit of existing buses or the acquisition of accessible used buses.
Large fixed-route OTRB operators would be required to have 50 percent
of their fleets accessible within 6 years, and 100 percent of their
fleets accessible within 12 years, of the date on which the rule began
to apply to them. Small fixed-route operators could be excused from
these fleet accessibility deadlines if they had not acquired enough new
buses in 6 or 12 years to replace 50 or 100 percent of their fleets.
Under the NPRM, demand-responsive operators would have to have 10
percent of their fleets accessible within two years of the application
date of the rules. All demand-responsive operators would have to make
an accessible bus available to a passenger who requested it. They could
ask for 48 hours' advance notice. When any operator using an accessible
bus made a rest stop, it would have to permit individuals who need to
use the lift to get on and off the bus to use the rest stop. Operators
who were not using an accessible bus would have to provide boarding
assistance for rest stop purposes if such assistance did not create an
unreasonable delay.
A joint Access Board/DOT rulemaking proposed standards for
accessible buses. Under this proposal, an accessible bus would have to
have a lift and wheelchair securement locations, among other features.
Only a bus that accommodated passengers riding in their own wheelchairs
was viewed as accessible.
The Department received over 400 comments on the NPRM. In general,
comments from the disability
[[Page 51671]]
community supported the NPRM, though commenters wanted to shorten the
fleet accessibility timetable and to strengthen the requirements
concerning rest stops. Comments from the bus industry generally opposed
the NPRM, saying that it was too costly and insufficiently cost-
effective.
Principal Issues: Comments and Responses
Transporting Passengers in Their Own Wheelchairs
The NPRM, and the DOT/Access Board proposal for accessible bus
standard, proposed that wheelchair users should be able to ride in
their own mobility aids. As the Department explained in the NPRM
preamble:
Approaches not permitting passengers to remain in their own
wheelchairs involve a minimum of four transfers on each trip (not
counting rest or intermediate stops)--from wheelchair to boarding
chair or device, and from boarding chair or device to vehicle seat,
at the start of the trip, with the process reversed at the end of
the trip. This increases the probability of discomfort, indignity,
and injury, compared to a trip that does not involve transfers.
Moreover, wheelchairs used by disabled passengers are often quite
different from one another, reflecting the individual needs of their
users. Vehicle seats are uniform, and consequently do not provide
the same comfort and support as the passenger's own wheelchair. This
can have health and safety implications for mobility-impaired
passengers. Many mobility-impaired passengers use electric
wheelchairs. Many such chairs are large and heavy. Others are of the
``scooter'' type. It is likely that most electric wheelchairs will
not fit into bus luggage compartments. Based on experience in the
airline industry, the process of stowing and retrieving electric
wheelchairs carries a significant risk of damage to the expensive
devices. Bus service to passengers who use electric wheelchairs
cannot be effective if transportation for the wheelchairs is
unavailable.
Disability community commenters unanimously supported this proposed
requirement, pointing to the inconvenience, indignity, and increased
risk of injury resulting from transfers as reasons. Hand-carrying, even
in boarding chairs, is unacceptable, many commenters said. Some
comments mentioned instances where passengers had been dropped, or
wheelchairs been damaged, in the course of manual boarding assistance
efforts. Many commenters also noted the likely unavailability of other
alternatives, such as station-based lifts or extra personnel needed for
boarding chair assistance, at stops in small towns or rural areas. (It
should be noted that no disability community commenters shared the view
of a bus industry commenter who thought that a bus seat was a more
comfortable place for a wheelchair user to ride than his or her own
wheelchair.)
The response of the bus industry to this aspect of the proposal was
ambivalent. On one hand, industry commenters stated firmly that
operators could meet the transportation needs of individuals with
disabilities through a ``service-based approach'' that would make
accessible buses (i.e., lift-equipped buses in which passengers could
ride in their own wheelchairs) available to passengers on a 48-hour
advance notice basis. (Greyhound recently announced that, as it had
previously proposed, it would provide 80 accessible buses on this
basis.) Sharing agreements among operators (``pooling'') would ensure
that such buses would be available, they said. Many operators also
referred to service they had provided successfully to wheelchair users
in accessible buses. Industry commenters also cited approvingly a
Canadian program that would provide accessible buses to passengers on
an advance-notice basis. It was clear from these comments that the
industry is convinced that providing service to wheelchair users riding
in their own wheelchairs is a viable option, as long as it is organized
along the ``service-based'' lines they propose. The industry's comments
to this effect said nothing about safety problems companies anticipated
encountering in implementing their own proposals.
On the other hand, some industry commenters questioned the
advisability of allowing passengers to ride in their own wheelchairs.
First, commenters said, DOT failed to consider the safety implications
of placing wheelchairs on OTRBs. The comments suggested that doing so
could pose a safety risk to other passengers. Second, commenters said
that it was unfair to require OTRBs to be accessible when less
accessibility was allegedly required in other modes (e.g., airlines,
where passengers transfer into aircraft seats) or when other modes
where passengers are required to be able to travel in their own
wheelchairs received government grants (e.g., mass transit, intercity
rail). More detailed summaries of these two lines of argument follow.
a. Safety
Industry commenters raising the safety issue made several points.
First, unlike accessible transit buses, which assumedly travel at lower
city speeds, OTRBs operate at highway speeds, increasing the risks to
wheelchair users and other passengers if wheelchairs are not adequately
secured. Second, the OTA report suggested that further review of
wheelchair transportation safety was needed. Third, DOT should study
crash forces in OTRB crashes so that proper securement standards could
be developed and should study the crashworthiness of the variety of
wheelchair designs in use, before requiring OTRB accessibility. Fourth,
for safety-related reasons, DOT does not permit airline passengers to
travel in their own wheelchairs, which makes it unfair to assume that
it is safe for passengers to travel in their own wheelchairs on OTRBs.
Fifth, the ADA and the DOT act require the Department to resolve these
safety issues before proceeding to a final rule. One industry
association attached a statement from a former National Highway Traffic
Safety Administration (NHTSA) official, Mr. William Boehly, elaborating
on some of these arguments.
b. Intermodal Unfairness
Industry comments assert that no other transportation mode has to
meet a standard requiring a wheelchair lift in every vehicle with only
a minimal Federal subsidy. They cite Federal grants for Amtrak and mass
transit, which help to pay for accessibility requirements. They also
argue that airlines do not have to buy lifts and that DOT has exempted
airports with less than 10,000 enplanements from accessibility
requirements. Provisions of the DOT Act and the ADA, these commenters
add, require greater equity among the relative burdens accessibility
requirements impose on carriers in various modes.
DOT Response--Safety Issues
a. What is the ADA Standard for Considering Safety Issues?
Under the ADA, if an agency is to limit the accessibility of
programs, facilities, or services to individuals with disabilities, it
must have evidence of a ``direct threat'' to the safety of others. This
standard is cited in bus industry comments (see Boehly statement, p.3).
However, industry commenters appear not to understand fully this
standard or its implications for this rulemaking. The concept of
``direct threat'' is the following, as explained in the regulations of
the Department of Justice (28 CFR 36.208):
(b) Direct threat means a significant risk to the health or
safety of others that cannot be eliminated by a modification of
policies, practices, or procedures, or by the provision of auxiliary
aids or services.
(c) In determining whether an individual poses a direct threat
to the health or safety of others, a public accommodation must make
an individualized assessment, based on reasonable judgment that
relies on current medical knowledge or on the best available
[[Page 51672]]
objective evidence, to ascertain: the nature, duration, and severity
of the risk; the probability that the potential injury will actually
occur; and whether reasonable modifications of policies, practices,
or procedures will mitigate the risk.
This standard is designed to prevent the exclusion of persons with
disabilities from services based on stereotype or speculation, as
distinct from actual risk. It is meant to be a very strict standard.
(See 56 FR 35560-35561; July 26, 1991). General concerns about the
possibility of risk, however sincerely felt, do not provide a basis for
a finding of direct threat.
This rulemaking is the fourth ADA rulemaking in which
transportation providers have made safety-related arguments to support
limits on the accessibility of vehicles or transportation service. The
first concerned the transportation of individuals in scooter-type
mobility devices. Transportation providers argued that since it was
more difficult to secure these devices, and since these devices may be
more likely to suffer damage in a crash than other types of
wheelchairs, providers should be able to deny transportation to persons
using them or require that the passengers transfer to a vehicle seat.
The Department responded as follows:
The Department, consistent with the ADA's requirement for
nondiscriminatory service and its legislative history, in view of
the ATBCB's definition of a ``common wheelchair,'' and given the
continued absence of information in the record that would support a
finding that carrying non-traditional wheelchairs would constitute a
``direct threat'' to the safety of others, is retaining the basic
requirement proposed in the NPRM. Under this requirement, any
``common wheelchair'' (i.e., one that will fit on a lift meeting
Access Board guideline requirements) must be carried. The provider
cannot deny service on the ground that the wheelchair is not secured
to the provider's satisfaction. The transit authority may require
that the wheelchair park in one of the securement locations
(generally, the Access Board guidelines require two such locations
in a vehicle) and that the user permit the device to be secured
using the vehicle's securement system. If the vehicle (e.g., a
currently-existing bus) does not have a securement system meeting
standards, the entity must still use a securement system it has to
ensure as best it can, that the mobility device remains within the
securement area. (56 FR 45617; September 6, 1991).
Second, transportation providers sought change in the provision of
the Department's ADA rule requiring providers to allow standees to use
lifts. Again, the argument was that standees posed unacceptable safety
risks. The Department responded as follows:
The key point in the comments, from the Department's point of
view, is the absence of information documenting a safety problem
resulting from standees' use of lifts. The ADA is a
nondiscrimination statute, intended to ensure, among other things,
that people with disabilities have access to transportation
services. To permit a transportation provider to exclude a category
of persons with disabilities from using a device that provides
access to a vehicle on the basis of a perceived safety hazard,
absent information in the rulemaking record that the hazard is real,
would be inconsistent with the statute (c.f., the discussion of the
transportation of three-wheeled mobility devices in the preamble to
the Department's September 6, 1991, final ADA rule (56 FR 45617)).
While we understand the concerns of transit agency commenters about
the potential safety risks that may be involved, the Department does
not have a basis in the rulemaking record for authorizing a
restriction on lift use by standees. (58 FR 63096; November 30,
1993).
Third, a transit authority petitioned the Department for a rule
that would permit it to deny use of bus lifts to wheelchair users at
certain stops that it deemed too difficult or dangerous for wheelchair
users to use. While this proposed rule change would deny wheelchair
users the use of facilities used by all other passengers, the
petitioner asserted that it was necessary on safety grounds. The
Department denied the petition, stating the following basis:
* * * [T]he ADA imposes strong legal constraints on the use of
classifications based on disability. Under the ADA, a proposed
action which treats a disability-based class of persons differently
from the rest of the public cannot be accepted merely because it may
assuage a party's good faith concerns about safety. This is a
position that the Department has taken consistently as it has
developed and implemented its ADA regulations [citing 56 FR 45617,
quoted above] * * *. Subsequently, transit community commenters
raised the issue of the use of lifts by standees, which the original
version of Part 37 required. The commenters expressed the concern
that standees could fall off the lifts or hit their heads, resulting
in injury to passengers and liability for providers * * *. [T]here
was little information in the record demonstrating that a real
safety problem, as distinct from speculation or fears concerning
potential safety problems, existed. The Department rejected the
proposal [citing (58 FR 63096, quoted above] * * *.
The Department's analysis of the [bus stop] petition is very
similar to its response to these two previous issues. The petition
presents a genuine, good-faith concern that a certain condition
(here, terrain or other problems at particular bus stops) may create
a safety hazard for a class of persons with disabilities. There is,
in the comments favoring the petition, agreement that difficult
conditions at some stops might, indeed, create some safety risks for
wheelchair users or other persons with disabilities. But there is
little in the record to suggest that there is substantial,
pervasive, or strong evidence that a real, as distinct from
speculative, safety problem exists.
To its credit, the petitioner attempted to show the Department
that problem stops existed for which the petitioner's proposed
remedy was needed. The petitioner provided a videotaped
demonstration of wheelchair users attempting to get on and off buses
using lifts at several problem stops. After reviewing the tape, the
Department concluded that it is reasonable to believe that at such
stops, wheelchair users may well have greater difficulty, and take
longer, in using bus lifts than at other stops. In some of the
situations, there could be a higher risk to wheelchair users than at
other, more ``normal,'' stops. The Department does not find this
evidence sufficient, however, to justify carving out an exception to
the nondiscrimination mandate of the ADA.
In thinking about situations in which safety reasons are
advanced for using disability-based classifications, the Department
finds it useful to consider the ``direct threat'' provisions that
exist in other provisions of the ADA. ``Direct threat'' permits
exceptions--specific to an individual--to be made to ADA
nondiscrimination requirements on the basis of safety. The
Department of Justice (DOJ) rule implementing Title III of the ADA
in the context of public accommodations defines the concept as
follows [citing 28 CFR 36.208, quoted above] * * *.
[T]he Department believes that it is appropriate, and in keeping
with the language and intent of the statute, to determine that
disability-based classifications in transportation having a safety
rationale are supportable only on the basis of analysis that
incorporates the essentials of the ``direct threat'' concept in a
way consistent with the nature of transportation programs. The
petition at issue in this rulemaking does not, in the Department's
view, closely approach what is necessary to be adopted under such an
analysis. (61 FR 25410-25411; May 21, 1996)
A common theme runs through each of these rulemaking decisions.
Transportation providers sought to limit accessibility on the basis of
safety. Transportation providers speculated that there might be safety
risks, but were unable to provide any significant evidence that the
risks were real. The Department, noting that there was not enough
evidence to support a ``direct threat'' finding, rejected the attempts
to limit accessibility. The direct threat concept itself, and the
Department's well-established application of the concept to
transportation rulemakings, place the burden of proof on the proponent
of limiting accessibility to demonstrate that a direct threat exists.
The Department is not required to prove a negative--to demonstrate that
there is no possible safety risk, or conduct extensive studies to
disprove the existence of a risk that commenters assert may exist--in
order to implement
[[Page 51673]]
fully the nondiscrimination requirements of the ADA.
b. Is There Evidence of a Direct Threat in This Case?
Bus industry comments speculated that there could be problems
regarding such matters as the crashworthiness of wheelchairs, the
adequacy of Access Board guidelines for the force to be restrained by
securement devices, and assertedly greater risks because OTRBs travel
at higher speeds than transit buses. The bus industry's argument is
that the Department must study each of the issues it raised, and engage
in lengthy safety rulemakings, before it may proceed with a requirement
that passengers be able to travel in their own wheelchairs.
As noted above, the Department is not obliged to demonstrate that
there are no safety risks before imposing an accessibility requirement.
Instead, before it could impose a limitation on accessibility, the
Department would have to conclude, based on evidence in the record,
that there is a direct threat. There is no evidence in the record of
this rulemaking demonstrating that any safety problem--let alone a
problem significant enough to constitute a direct threat--exists with
respect to the transportation of wheelchair users in their own mobility
devices on board OTRBs.
The record is replete with representations by OTRB operators that
they have successfully used accessible OTRBs for considerable periods
of time. For example, the same industry association that included the
Boehly statement also attached a summary of the accessible bus
experience of many of its members. From all this experience of bus
operators carrying actual wheelchair users in actual buses there is not
a single study, not a single set of data, not a single summary of
insurance claim information, not a single court decision imposing
liability on a bus operator for a wheelchair-related injury, not a
single accident report, not even a single anecdote demonstrating that
carrying wheelchair users in their own mobility aids has ever had any
actual adverse safety consequences. Notwithstanding the safety
arguments in their comments, industry commenters repeatedly advocate
using a percentage of accessible buses with lifts and securements to
implement the ``service-based approach'' they support. The Department
cannot limit the accessibility of wheelchair passengers without a basis
in evidence sufficient to support a direct threat determination.
c. Bus Speeds
The industry argument concerning bus speeds is essentially that
since OTRBs frequently travel at highway speeds (i.e., 55-70 miles per
hour on Interstate highways), the securement standards applied to
transit buses, which typically travel at slower city speeds, may not be
adequate for OTRBs. It is fair to assume that, if an OTRB crashes at
full highway speed, there are serious risks of death and injury to all
persons aboard the vehicle, including those using vehicle seats. One
need not look further than this year's multi-fatality crash of an
intercity bus in Pennsylvania to prove the point. Fortunately for
everyone concerned, OTRB service one of the safest modes of
transportation (one industry web site declares that ``people are nearly
twice as likely to die of dog bite than in a bus crash''), and high-
speed crashes like the one in Pennsylvania appear to be rare.
The bus industry, individual companies, and their insurers are in
the position to know a good deal about the industry's crash experience.
For example, the industry would know what proportion of its crashes
take place at highway speeds and what proportion take place at lower
speeds in more congested urban areas. The comments do not include data
of this kind. As with other types of vehicles, it appears likely that
there is a higher probability of OTRBs having accidents in the midst of
urban congestion, rather than on the safer ``open road'' of the
Interstate system. In other words, while OTRBs travel more vehicle
miles at highway speeds than do transit buses, it is reasonable to
suppose that their principal exposure to crashes is likely to be in a
similar environment to the one that transit buses inhabit.
It should also be noted that, in HOV lanes, busways, suburban
express commuter routes, and off-peak travel on Interstate highways,
transit buses often do travel at highway speeds. Transit buses, of
course, must permit wheelchair users to travel in their own
wheelchairs. No one has presented any evidence to the Department, in
this rulemaking or otherwise, demonstrating the existence of a safety
problem related to wheelchair users traveling in their own wheelchairs
in this context. Nor is there such evidence in the record concerning
intercity, commuter, or rapid rail systems, in none of which passengers
are required to use securement systems for their wheelchairs and all of
which involve travel at higher than highway speeds.
There appears to be more in common between the risk exposure of
transit bus and OTRB passengers than the industry comments suggest.
There is no evidence to suggest that wheelchair passengers traveling in
their own mobility aids are a significant safety problem in either
context. The Department does not have a basis concerning the relative
speeds of transit buses and OTRBs for determining that there is a
direct threat resulting from wheelchair passengers traveling in their
own mobility devices.
d. Wheelchair Crashworthiness
This argument, developed at its greatest length in the Boehly
statement, is that no one, including NHTSA, has established
crashworthiness standards for wheelchairs that are used on board buses
or other conveyances. Since there is a great variety of mobility aids,
and little is known about how many models perform in crashes, industry
comments say, there should be studies and a NHTSA rulemaking addressing
wheelchair crashworthiness before an OTRB accessibility requirement is
issued.
The Department agrees that accessible OTRBs, like other vehicles,
must meet applicable NHTSA and FHWA safety requirements. We would not
require OTRB operators to take action, or obtain equipment, that
violate established safety requirements. The final rule includes
language to this effect. In this regard, we take the same path as we
did under the Air Carrier Access Act, where our regulations specify
that carriers are not required to act contrary to FAA safety
regulations.
It is quite another thing, however, to say that the Department
should withhold accessibility requirements pending a rulemaking that
NHTSA is not now pursuing and that NHTSA does not believe it has
jurisdiction to pursue. The Department has no history of regulating
wheelchairs and no explicit authority to regulate them. The Boehly
statement asserts that NHTSA should pursue such a rulemaking. However,
the absence of a rule that commenters believe NHTSA should issue in the
future has no legal or practical effect on the issuance of an ADA rule
by Department today.
e. Securement Device Standards.
Industry comments and the Boehly statement recommend detailed
studies of the crash performance of OTRBs and wheelchairs, with the aim
of establishing engineering standards for the design loads of
securement devices. Once again, should NHTSA choose to conduct such
studies, and should the studies result in the issuance of a final NHTSA
rule, the rule would apply prospectively to accessible OTRBs.
[[Page 51674]]
Meanwhile, nothing in the record of this rulemaking demonstrates either
that the proposed Access Board design loads for securement devices are
inadequate or that present or future securement devices used on
accessible OTRBs result in a direct threat. It bears reemphasis that
speculation about potential hazaards is not a basis for a direct threat
finding that would justify a limitation on accessibility.
Members of the bus industry who have accessible buses can be
presumed to know what types of securements they currently use. If they,
or their risk managers, have used or recommended securement systems
that exceed the proposed Access Board guidelines, that information is
available to them. No such information was provided in the record for
this rulemaking, however. It should be pointed out, in any case, that
the Access Board guidelines for accessible vehicle are minimums. If bus
companies believe that securements exceeding these guidelines are
advisable, they can install them. We also note that requirements to
purchase accessible buses do not begin to apply to carriers until two
years from the effective date of this rule. To the extent that bus
companies are genuinely concerned about the adequacy of existing
securement devices, this time should permit them to undertake
additional development work toward improved securements that the bus
industry could use.
f. OTA Recommendation
Industry comments cite statements in the OTA study discussing
safety issues concerning transportation of wheelchairs in OTRBs and
recommending further review of standards for carriage of wheelchairs in
OTRBs. The OTA statements briefly mention potential risks to wheelchair
users and other passengers. Like statements by industry commenters
themselves about potential risks, the OTA statements do not provide a
factual basis for a direct threat finding. Data, not speculation, is
needed to establish a direct threat.
The OTA statements concerning potential safety issues were in
context of a report that clearly recommended that all new buses be
accessible and that wheelchair users ride in their own mobility aids.
It is clear from the OTA report that OTA did not believe that its
statements about potential safety issues precluded a requirement for
accessible buses. Moreover, as the ADA itself provides, the Department
is obliged to consider OTA's recommendations but is not required to
adopt them. Bus industry comments clearly recognize this point when
they urge the Department not to follow OTA recommendations to make all
new buses accessible.
One other OTA statement cited in bus industry comments has to do
with the ability of bus operators to secure wheelchairs properly if
they do not do so frequently. The final rule requires bus companies to
train their operators to proficiency in, among other things, wheelchair
securements. In response to industry commenters' concern that their
operators might forget how to carry out this or other functions, the
rule also mandates refresher training, as needed, to maintain
proficiency. The rule does not mandate any particular training time,
curriculum, or inteval. These matters are best left to bus companies as
they determine what is necessary to ensure that employees become and
remain proficient as providing service to passengers with disabilities.
g. Buses and Airplanes
Industry comments argue that because wheelchair users must transfer
to aircraft seats, it may be necessary for safety reasons to follow the
same practice in OTRBs. As one comment put it, ``If onboard wheelchairs
are deemed not safe for the airline industry, they cannot be assumed
safe in the OTRB industry.'' This argument misses what should be a very
obvious point: buses don't fly. Industry comments that make much of the
differences between OTRBs and transit buses do not mention the far
greater differences between OTRBs and commercial passenger aircraft.
OTRBs do not take off, cruise, and land at speeds in the hundreds
of miles per hour. Even on the most potholed of city streets, OTRB
passengers do not experience forces similar to those experienced by
airline passengers during episodes of turbulence. In normal flight,
airline passengers are likely to experience substantially higher g
forces (e.g., takeoff acceleration), steeper angles (e.g., while
ascending and descending) and bigger bumps (e.g., upon many landings)
than bus passengers. DOT safety rules for seats and passenger
restraints in buses (see for instance 49 CFR 571.207 and 571.222) and
aircraft (see for instance 14 CFR 25.562 and 25.785) are very different
from one another, as befits the different modes of transportation. For
example, airline passengers are required to fasten their seat belts,
which themselves have very specific requirements for the forces they
must restrain. Buses are not even required to have seat belts.
The flawed analogy between aircraft and OTRBs fails to establish
that, because aircraft passengers must transfer into airplane seats and
fasten their seat belts, there is a direct threat to the safety of bus
passengers if wheelchair users ride in their own wheelchairs.
h. Other Statutory Provisions
In addition to citing the direct threat language of the ADA, the
Boehly statement refers to ADA language tasking OTA with studying ``the
degree to which [OTRBs] and service are * * * readily accessible to and
usable by individuals with disabilities'' (citing 42 U.S.C. 12185(2)
[sic]. The statement asserts that this term means that buses be able to
be entered ``safely and effectively.'' The latter words are not in the
statutory provision.
In any case, this portion of the ADA is not a mandate that the
Department must prove that there are no potential safety issues before
issuing an accessibility rule. Neither the statute nor the courts have
ever stated or implied such a requirement in any ADA context. The
extent to which OTRBs are ``readily accessible'' was one of several
matters into which OTA was to look as it made recommendations
concerning OTRB accessibility. As noted above, OTA strongly recommended
that all new buses in fixed-route be accessible. Of course, DOT is not
obliged to adopt OTA's recommendations in any case. This language does
not preclude the Department from issuing a requirement for accessible
OTRBs, even if alleged safety issues are not resolved to the industry's
satisfaction.
Commenters also cited a provision of the Department of
Transportation Act that provides that the Secretary is to consider the
needs for effectiveness and safety in transportation systems. This is
part of the general statement of the Department's responsibilities. It
is not a requirement that the Department proceed in any particular way
on this or any other specific rulemaking.
DOT Response--Intermodal Unfairness
All modes of transportation have to meet significant accessibility
requirements. These obligations are well known. Many are parallel to,
or more stringent than, requirements for OTRB accessibility. New
transit buses and intercity, commuter and rapid rail cars must be
accessible, just like new fixed-route OTRBs. Other modes must make good
faith efforts to obtain accessible used vehicles as well; there is no
parallel requirement for OTRBs. OTRBs are excused from requirements to
have accessible restrooms if doing so will result in a loss of seats;
intercity rail cars are not. Fixed-route transit
[[Page 51675]]
authorities must provide expensive, operating cost-intensive
paratransit services to passengers who cannot use fixed-route transit.
There is no parallel to this requirement for OTRB companies. The ADA
requires facility modifications for rail stations (e.g., key station
retrofits for rapid and commuter rail; retrofits of all Amtrak
stations). OTRB companies, whose existing stations are subject only to
the general requirements of Title III of the ADA, have no parallel
retrofit requirement.
Infrastructure-related costs also vary among the modes. New rapid
rail systems have significant construction costs. All types of rail
systems, directly or indirectly, pay to maintain their rights of way.
Through airport landing fees, aviation fuel taxes, and passenger
facility charges, airlines directly or indirectly contribute
significantly to the costs of the construction and maintenance of the
infrastructure they use. OTRB operators, on the other hand, have since
1984 been exempt from all but three cents of the Federal tax on diesel
and other special fuels. The value of this exemption is currently 21.3
cents per gallon. This tax saving--in effect, an indirect Federal
subsidy--allows the bus industry to use the nation's highway
infrastructure at a considerably lower cost than other users.
The airline industry is governed, for accessibility purposes, by
the Air Carrier Access Act, rather than the ADA. Like the OTRB
industry, it consists of private companies who (except for some small
carriers who receive financial assistance under the Essential Air
Service program) do not receive public grants. Unlike the OTRB
industry, airlines provide for level-entry boarding for all passengers
in many situations, usually through expensive loading bridge equipment.
Recently, the Department began requiring lifts for situations in which
level-entry boarding does not exist for small commuter aircraft at most
commercial service airports. We anticipate proposing to expand this
requirement to other aircraft where level-entry boarding is not
available. (The Department's rule provides for carriers and airports to
work together to make lifts available.) It is not correct to say, as
one industry comment suggested, that airports with fewer than 10,000
annual enplanements are not subject to accessibility requirements. As
public entities, airports are subject to normal ADA Title II
requirements for accessibility, without regard to the number of
enplanements.
Industry comments also argue that most transportation providers in
other categories receive significant Federal grants. Such programs do,
of course, exist. We would point out that TEA-21 authorizes a subsidy
for OTRB operators dedicated to accessibility costs. The overall grants
to other surface modes are higher, in their absolute amounts, than the
subsidy authorized by TEA-21 for OTRB accessibility. Of course, the
other surface modes also have higher total costs and higher
accessibility costs (especially for mass transit, with its paratransit
mandate).
It should also be emphasized that in transit and intercity rail,
Federal grants are not dedicated to the purpose of defraying
accessibility costs. They are grants that apply to the overall capital
and, to an extent, operating costs of the systems. (TEA-21 largely
eliminated transit operating assistance, which was available to help
pay for the costs of paratransit operations.) Accessibility programs
must compete for these Federal grants with other system priorities.
Unlike grants for mass transit and Amtrak, the subsidy authorized in
TEA-21 for OTRB operators is dedicated to accessibility costs (the
transit program does provide an additional 10 percent Federal share
toward capital purchases of accessibility equipment). This subsidy
addresses, precisely and in a significant way, the costs of compliance
with this rule. In this important respect, it has no parallel in other
modes. As with all TEA-21 funding for all programs, even those with
guaranteed funding, the availability of funds is subject to the budget
and appropriations processes.
It is true, as industry comments point out, that the TEA-21 OTRB
subsidy is only authorized through the end of TEA-21. This is true of
transit and Amtrak grants as well, all of which must be reauthorized in
the next highway/transit authorization bill in order to continue. As
noted below, other Federal funding sources are available to help defray
OTRB costs.
Transportation modes differ significantly from one another.
Accessibility requirements, and sources of funds to pay for them, are
not the same in every mode. It is not fair to say, however, that
accessibility requirements are more burdensome for OTRB operators than
for anyone else. Nor is it fair to say that the OTRB industry is worse
off than everyone else with respect to accessibility costs or Federal
assistance in helping to meet the costs.
In any event, the Department is not required, as a legal or policy
matter, to equalize the burdens on all modes or companies. There is no
provision of the ADA that so requires. In the ADA, Congress specified
the requirements for other surface modes, sometimes in great detail.
Congress delegated the task of determining requirements for OTRBs to
the Department, but nothing in the language or legislative history of
the ADA requires OTRB costs to be the same as, or directly proportional
to, costs in other types of transportation.
Nor do any provisions of the DOT Act or other statutes applying to
the Department require an ``equalization'' of costs, burdens, or
benefits among modes. Given the very real differences among modes, it
is doubtful that such a result is attainable, and it is not required in
other areas, such as safety regulation (e.g., where airlines are
regulated in significantly greater detail than buses) or grant program
provisions (e.g., where Federal financial assistance pays a greater
portion of the costs of building a highway than operating a transit
system). Accessibility requirements may likewise legitimately reflect
differences among the modes.
DOT Response--Conclusion
The Department's final rule, and the DOT/Access Board provisions
concerning accessible bus standards, will continue to provide for
wheelchair users riding in their own mobility aids.
Accessible Buses and the ``Service-Based Approach''
One of the principal debates surrounding this rulemaking is that of
the competing claims concerning the necessity for accessible buses in
operators' fleets. Generally, disability community commenters said that
accessible buses were essential, while operators said that a ``service-
based approach'' centering on 48-hour advance notice service would
provide just as good service on a much more cost-effective basis. While
this debate touched on charter/tour service, it focused on fixed-route
service.
Disability community comments unanimously said that service in
accessible buses was essential, and that solutions short of this--use
of station based-lifts, boarding chairs, etc.--were wholly inadequate.
Risks of transfer were real (e.g., passengers who were dropped,
passengers who had to crawl on board, wheelchairs that were damaged),
they said, and station-based lifts and sufficient personnel to assist
boarding would not exist at many stops. The lack of service in
accessible buses denies needed and essential transportation
opportunities to persons with disabilities, many of whom are low-
income, transit-dependent persons, with few if any affordable
transportation alternatives, particularly in rural areas. Advance-
notice fixed-route service on a permanent basis is discriminatory, they
said. All passengers must have the same
[[Page 51676]]
opportunity to travel when they wished, including on short notice.
Moreover, the ``pooling'' arrangements needed for the industry's
approach would not work, they said. The logistics are complicated, and
there is no information to suggest that they could be made to work
successfully, particularly in the context of interlining or other
service requiring well-timed transfers between buses. Commenters were
concerned that passengers would be stranded at transfer points. One
disability group did an informal survey of advance notice service by a
large operator under present Sec. 37.169 that it said revealed numerous
failings in the service. If carriers can't make present interim service
work, commenters argued, how can they make their ``service-based
approach'' work? Other disability community comments also related
anecdotes of failed advance notice service in the bus industry.
Commenters also recalled what they viewed as significant logistical
problems with ADA paratransit and advance notice service in the
airlines, saying that it is very difficult for any organization or
group of organizations to make such service work consistently well.
Moreover, the industry has also underestimated the cost and difficulty
(e.g., communications, computer services, planning, dispatching,
deadheading) of operating good demand-responsive service.
From the industry's point of view, requiring all new buses to be
accessible is unnecessary and cost-ineffective. Given the low usage of
accessible buses that the industry expects, a small number of
accessible buses (e.g., 80 for Greyhound) deployed in a 48-hour advance
notice mode could meet all fixed-route demand, commenters said. Doing
so would be far more cost-effective than acquiring a fleet of
accessible buses, in the sense that the industry would spend fewer
dollars per expected ride by persons who need accessible buses. Some
unions for bus company employees supported this point of view.
Commenters assured the Department that the logistics of such a
system could work, though they provided few details about how it would
work. The carrier that was the subject of the disability group survey
that alleged poor service commented that it had an extensive training
program for its personnel and that it could either not verify most of
the problems alleged or that the alleged problems were contrary to its
policy. Operators also commented that the service-based approach would
provide accessible service sooner than the NPRM's proposal, which they
said would ``delay'' accessible service for 12 years, compared to the
advance notice system they were prepared to inaugurate in the near
future.
Industry commenters also disagreed with the disability groups'
assertion that advance notice service in the fixed-route context was
discriminatory. One operator commissioned a survey of a small number of
selected passengers who, it said, preferred an advance-notice system to
something like the Department's NPRM. Moreover, this operator said,
most passengers--particularly most disabled passengers--call ahead of
time to make arrangements for or inquiries about service. If passengers
ordinarily call ahead of time anyhow, the carrier argued, it is not
discriminatory to require them to do so in order to get an accessible
bus.
DOT Response. Two good friends and traveling companions, Don and
Mike, go to the bus station Monday morning. Don is ambulatory. Mike is
a wheelchair user. They both approach the ticket window and pay $34 for
a ticket. The ticket seller says to Don, ``Your bus is at Gate 5. It is
leaving in 10 minutes. Get on it and proceed to your destination.'' The
ticket seller says to Mike, ``Come back Wednesday. Then we'll have a
bus you can use.'' The scenario works the same way over the telephone.
In response to their Monday morning calls, the reservationist says to
Don, ``Your reservation is confirmed. You bus leaves at noon today.''
To Mike, the reservationist says, ``Your reservation is confirmed, but
you can't leave until noon Wednesday, because we won't have a bus you
can use before that.''
In this scenario, two people seek the same service at the same
time. One gets the service immediately, the other gets the service
after a two-day delay. The only difference between them is that one is
ambulatory and the other is a wheelchair user. In a very precise sense,
the scenario is discriminatory: it provides more delayed, less
convenient service to some passengers than to others, based solely on
disability. Adopting industry proposals for fixed-route service across
the board, particularly with respect to large-fixed route operators
whose service constitutes the backbone of intercity bus service,
permanently institutionalizes this scenario. This is very difficult to
reconcile with the purposes of a nondiscrimination statute like the
ADA.
In establishing a rule for large fixed-route carriers' obligations
under the ADA, it is not appropriate for the Department to adopt a
system institutionalizing disability-based distinctions in the quality
of service. Doing so would mean that carriers who provide a large
majority of all intercity trips would never need to provide fully
accessible, everyday, nondiscriminatory service. While it makes policy
sense to make some accommodations for small carriers on the margins of
the fixed-route system (see discussion of small mixed-service operators
below) the Department believes the backbone of intercity service must
consist of fully accessible, nondiscriminatory everyday service if the
purposes of the ADA are to be fulfilled.
It may be that many passengers, disabled and non-disabled alike,
call fixed-route bus companies before they travel. Certainly, under
present Sec. 37.169, calling ahead to try to arrange boarding
assistance is the only way passengers with disabilities can hope to
travel on most fixed-route bus service, so it would be surprising if
some passengers didn't call. We note that commenters, while saying that
a lot of passengers called for information before traveling, did not
assert that large percentages of passengers made advance reservations.
Since carriers provide immediate service to passengers (unless they are
disabled passengers requiring boarding assistance), it is not necessary
for them to do so.
In any case, the fact that passengers may call for information does
not negate the discriminatory impact of requiring a disabled passenger
to make an advance reservation while other passengers can and do
receive immediate service. Even if everyone called the bus company
ahead of time, and even if everyone made a reservation, a system that
allowed non-disabled passengers to make a reservation for today while
requiring disabled passengers to make a reservation for two days from
today would be discriminatory. It would single out passengers with
disabilities as the only category of persons who were required to make
reservations two days in advance.
Industry comments consistently assert that a service-based system
will work in the fixed-route context. Unfortunately, industry comments
included little, if any, factual or analytic information from which the
Department can determine whether such a system really would work. Given
the number of points served by fixed-route bus systems and the
complexity of bus scheduling, particularly where transfers and
interlining are involved (points made by bus industry commenters
themselves in the context of their discussion of unscheduled rest
stops), it is not self-evident that the logistics of 48-hour advance
notice service could be made to work system-wide. Disability community
comments raised reasonable
[[Page 51677]]
doubts about the likelihood of success, based on experience with the
bus industry and other modes.
The Department reviewed the information in one industry comment
concerning the brief consumer research paper prepared by a consultant.
It involved telephone interviews with a small number of wheelchair
users, many of whom were selected because of previous phone contacts
with the carrier. The researcher then asked the respondents whether
they would prefer a 48-hour advance reservation system or a system in
which all buses were accessible, but all passengers would pay a fare
increase (the information in the comment did not state what size fare
increase the researchers suggested to respondents would be involved).
The questions appeared to assume that the advance notice system would
succeed logistically in producing the requested service. Most of the
respondents said they preferred the advance notice system under these
circumstances.
This consumer research paper is neither persuasive nor relevant.
The small number of respondents, the bias in the selection method for
many of the respondents, and the bias produced by the form of the
questions and the assumptions underlying them, among other factors,
undermine whatever value it might have as popularity poll for the point
of view it was designed to support. It is best viewed as an
illustration of the survey research truism that one can determine the
outcome of a poll by the way one formulates the questions.
In any case, popularity polls for policy choices have limited
relevance to the rulemaking process. Unlike some activities (e.g., TV
network programming), rulemaking is not run by polling numbers.
Compared to the substance of comments on the record from those
individuals and organizations who chose to actually participate in the
rulemaking process, such polls carry little weight. If the individuals
polled believed that the Department should alter its proposed approach,
they had the opportunity to comment and say why, but they apparently
chose not to do so (since no comments from individuals who identified
themselves as having disabilities took the position that the poll
represents the respondents took.)
It is not accurate to say that the Department's decision to require
the acquisition of new accessible buses will in any sense ``delay''
accessible service, compared to the industry's preferred approach.
Under the interim service provisions, fixed-route operators will have
to provide 48-hour advance notice service until their fleets are 100
percent accessible, just as the industry proposed. The difference
between the industry proposal and the final rule is that, under the
latter, most fixed-route fleets--particularly those of large carriers--
will ultimately become 100 percent accessible, rather than advance
notice service becoming the permanent approach.
The industry's economic arguments are discussed in more detail in
subsequent sections of the preamble. At this point, we note that
industry comments have repeatedly mischaracterized the provisions of
the ADA relating to the OTA study as requiring the Department to adopt
a ``cost-effective'' solution. The provisions of the ADA say no such
thing. Rather, the provisions of the Act list cost-effectiveness as one
of several matters that OTA was to study. DOT was to take OTA's study,
its purposes, and its recommendations into account, which the
Department has done. The statute does not mandate that the Department
accept any of OTA's findings. It does not mandate that the outcome of
the Department's rulemaking meet any particular substantive test.
Congress could have written statutory language that said ``DOT shall
issue a regulation adopting the approach to OTRB bus accessibility
having the lowest cost per stimulated trip,'' or ``DOT shall not issue
a regulation unless the approach satisfies industry cost-effectiveness
criteria.'' Such language may have had the effect the industry seeks to
read into the existing statutory language. But Congress did not do so.
We also note that it is difficult to argue that an approach is
``cost-effective'' unless it is effective in achieving its objective.
The objective of OTRB service under the ADA is to provide service that
works to passengers with disabilities in a nondiscriminatory manner. A
system premised on a discriminatory mode of providing service that has
not been demonstrated to be workable cannot be presumed to be
effective.
Fleet Accessibility Deadlines
The NPRM proposed to require fixed-route operators to ensure that
their fleets were 50 percent accessible 6 years into implementation of
the final rule and 100 percent accessible 12 years into implementation.
Small operators would be excused from these deadlines if they had not
obtained enough new buses in those time periods to meet the required
fleet accessibility percentages. These deadlines were intended to
provide a time certain when passengers could count on regular,
scheduled accessible service on all runs as well as to create a
disincentive for companies to delay bus replacements to postpone
accessibility. The 12-year target for 100 percent accessibility was
based on information concerning the normal bus replacement cycle of
large carriers. In addition, demand-responsive providers were to
achieve 10 percent fleet accessibility within two years, again with a
provision excepting small carriers who did not obtain enough new buses
in that period to meet the deadline.
Disability community commenters generally supported the concept of
fleet accessibility deadlines for fixed-route operators. Commenters
believed that fleet accessibility schedules were important, among other
reasons because, in their view, the bus industry was so opposed to
accessibility that it could not be trusted to proceed toward
accessibility in a measured way. It was necessary to hold the
industry's feet to the fire, in this view. However, most of these
commenters thought that the proposed deadlines were too far into the
future. They would allow 20 years between the passage of the ADA and
full accessibility, some pointed out. The bus industry should not be
rewarded for its opposition to accessibility and the statutory and DOT-
created delays in promulgating rules, others said. Suggestions for
fleet accessibility timetables included 4 and 8 years, 4 and 10 years,
2 and 5 years, 3 and 6 years, etc. for 50 and 100 percent fixed-route
fleet accessibility.
Even aside from its opposition to a requirement to obtain new
accessible buses, the bus industry strongly opposed the proposal for
fleet accessibility deadlines. Part of this opposition appears to be
based on a concern about their effect on small fixed-route operators.
Industry comments expressed concern that the deadlines would force
small companies to accelerate the purchase of vehicles, purchase new
instead of used vehicles, or take other uneconomic actions that would
impose unreasonable costs and lead them to abandon fixed-route service.
Commenters also expressed concern about the potential effect of the
deadlines on the resale value of inaccessible buses.
Moreover, commenters said, the proposed deadlines were based on the
replacement cycles typical of large carriers, which do not necessarily
apply to smaller carriers. Even large carriers may not always be able
to maintain a 12-year replacement cycle, commenters said, because of
changes in economic conditions. The requirement placed them in an
economic straitjacket that
[[Page 51678]]
hampered their ability to respond flexibly to market conditions, they
said. It was unfair to impose on bus operators a timing requirement
that other modes did not face under the ADA, they added.
With respect to charter/tour service, disability community
commenters generally favored the 10 percent requirement, though some
thought it was too low, believing that 20 or 25 percent would be a
better figure to ensure the availability of accessible buses in the
charter/tour segment of the industry. Bus industry commenters decried
what some called a ``quota'' approach, saying that this imposed
unnecessary costs and that it made more sense to eliminate a number-
based requirement altogether and simply require that operators meet
identified needs on a 48-hour advance notice basis, with an
accountability mechanism.
DOT Response. It appears that some of the bus industry's concerns
about the effect of the proposed deadlines on small operators were
based on a misunderstanding of the NPRM. Used buses would not be
required to be accessible. Retrofit would not be required. Under the
NPRM, if a small fixed-route operator did not obtain enough new buses
within the stated time frames to replace 50 or 100 percent of its buses
(e.g., it kept its old buses a long time, or it purchased only used
buses), it would not violate the proposed rule. Substantively, the NPRM
formulation for small fixed-route operators--the fleet accessibility
requirement plus the exception--is not very different from a
requirement to obtain accessible new buses without any fleet
accessibility requirement being stated.
In either case, all new fixed-route buses have to be accessible. In
either case, the total fixed-route fleet becomes accessible only if and
when all inaccessible buses are replaced with new buses. This being the
case, we have decided it is simpler and more understandable to
eliminate the fleet accessibility requirement for small fixed-route
operators. There will be no retrofit or accessible used bus acquisition
requirement. Small operators' fleets will become accessible when, and
to the extent, that they replace existing inaccessible buses with new
accessible buses. Operators must continue to provide interim service
until and unless their fleets are 100 percent accessible, which, for
some operators (e.g., operators who purchase primarily inaccessible
used buses), could be indefinitely.
Large fixed-route operators provide the backbone of intercity bus
service. For fully accessible, nondiscriminatory, everyday service to
be a reality, those carriers must have accessible fleets within a
reasonable period of time. These carriers typically purchase or lease
new buses, and their comments do not deny that they do so on a 10-12
year replacement cycle. Consequently, the Department believes that it
is consistent with the purpose and language of the ADA to require large
fixed-route operators to meet a 6/12-year fleet accessibility schedule.
Such a schedule is what they would meet via their normal replacement
cycles, so it should not cause any economic distortions. This schedule
will give assurance to consumers of the time frame in which they have a
reasonable expectation of fully accessible service. Shortening these
time frames, as disability community comments suggested, could force
companies to disrupt bus replacement schedules or even retrofit
existing buses, which we do not believe to be desirable.
The Department realizes that economic conditions can change, and
companies can face unexpected problems. Bus replacements can fall
behind historically typical cycles. To provide flexibility for
unexpected situations, the Department has added a time extension
provision for large fixed-route operators. If (1) such an operator has
not obtained enough new buses in 6 or 12 years to meet the 50 and 100
percent fleet accessibility requirements; (2) it has not put itself in
this position by, for example, stocking up on an unusually large number
of inaccessible buses between October 1998 and October 2000; and (3) it
has otherwise complied effectively with the requirements of the rule,
the Secretary could grant a time extension beyond the 6 and 12-year
dates. This provision avoids the potential ``straitjacket'' problem
asserted by commenters, since it allows bus companies operating in good
faith to obtain additional time to meet requirements in a way
consistent with their actual bus replacement practices.
With respect to charter/tour operators, the Department has decided
to eliminate the proposed 10 percent fleet accessibility requirement.
Unlike the fixed-route sector, in which fleet accessibility is
necessary for fully accessible, nondiscriminatory, everyday service,
the charter/tour sector is better able to meet its ADA obligations
through the industry's favored ``service-based'' approach. This is
because of the advance-reservation nature of charter/tour service. If
bus industry arrangements produce reliable charter/tour accessible bus
service on an advance-notice basis, as industry comments assert that it
can, ensuring that a particular percentage of buses in carriers' fleets
are accessible becomes less important. The accountability mechanism
described below is expected to help ensure that the promised service is
provided.
Consequently, the final rule does not require charter/tour
operators to acquire any particular number or percentage of accessible
buses within any particular time frame. These companies will be
responsible for providing 48-hour advance reservation service to
passengers with disabilities in October 2001 or 2002, as applicable,
rather than two years later as proposed in the NPRM. The two-year delay
in the NPRM was premised on companies building up to a 10 percent
accessible fleet in that period. In the absence of the 10 percent
requirement, the rationale for a phase-in period of this length is
considerably weakened. A shorter phase-in will be sufficient. Moreover,
given the assurances of industry commenters concerning their readiness
to meet advance notice requirements, and the fact that compliance is
not required for two to three years from now, it is reasonable to
believe it is feasible for operators to comply in October 2001-2002. In
addition, retaining the two-year delay would mean that, for passengers
of most of the operators who are small entities, it would be five years
before they could count on receiving accessible service.
Small Mixed-service Operators
Bus industry commenters said that the NPRM's division of operators
into fixed-route and demand-responsive components did not capture a
frequent type of operation among small operators. Small operators, they
said, often provided both kinds of service. Typically, such an operator
is primarily a provider of charter/tour service. The typical operator
uses most of its buses in, and makes most of its money from, charter/
tour operations. Its fixed-route operations make up a much smaller
portion of its overall activities, which may often be economically
marginal. Often, the same buses are used for both fixed-route and
demand-responsive purposes (e.g., a bus might be used for fixed-route
service at one time during the week and demand-responsive service at
another time of the week, or a bus might be used for charter/tour
service initially and then moved into fixed-route service as it ages).
Small operators in this category said that they would need few, if
any, accessible buses of their own to meet the 48-hour advance notice
[[Page 51679]]
requirements for charter/tour service. They could rely on ``pooling''
or other bus-sharing arrangements to produce an accessible bus when
needed. If they had to buy accessible buses when they bought new OTRBs
that would be used in fixed-route service, their costs would increase
to the point where they would have an incentive to eliminate their
fixed-route service.
Disability community comments did not discuss this category of
operator, which the NPRM did not specifically mention. From disability
community comments on other types of operations, however, it is fair to
infer that disability community commenters would advocate that all new
buses used in fixed-route service would have to be accessible.
DOT Response: In working on the regulatory assessment, the
Department conducted a brief, informal survey of small bus operators.
Based on this survey and other information available to the Department,
the regulatory assessment estimates that for about 5/8 of the carriers
offering fixed-route service, not more than 25 percent of their fleets
is allocated to fixed-route service. Survey responses from operators in
this category indicated that an average of 77 percent of their fleets
were assigned to charter service.
The Department believes that industry commenters have a plausible
argument. If a significant majority of an operator's buses and service
is devoted to charter/tour service, with a small amount of fixed-route
service on the side, it is reasonable to believe that the costs of
acquiring accessible new buses for (often part-time) use in fixed-route
service would provide an incentive to limit or end fixed-route service.
In order to avoid this effect, we are modifying the requirements for
operators in this category, which the final rule defines as a small
operator 25 percent or fewer of whose buses are used in fixed-route
service.
The final rule gives operators in this category the option of
providing all its service--fixed-route as well as demand-responsive--on
a 48-hour advance notice basis. This approach would remove the
incentive to eliminate fixed-route service discussed above. It would
also permit these small operators to meet all requirements through only
one set of procedures.
This approach admittedly has disadvantages from the point of view
of passengers with disabilities. It encounters the discrimination and
logistics issues discussed in connection with fixed-route service by
large operators. As a policy matter, however, the situation of small
mixed-service operators is quite different from that of large fixed-
route operators. They are at the periphery, not the center, of the
nationwide intercity bus system. They carry a much smaller percentage
of fixed-route passengers. Treating these operators differently from
large fixed-route operators, moreover, is consistent with Regulatory
Flexibility Act policy. Consequently, the Department has concluded
that, on balance, this approach is acceptable in this limited set of
circumstances, particularly in view of the accountability mechanism
discussed below.
Accountability Mechanism
A number of bus industry comments, in the course of providing
assurances that 48-hour advance notice service will work, suggested the
idea of an accountability mechanism for the provision of promised
service. There were two principal ideas. One industry association
suggested a ``complaint board,'' an administrative body that could act
in a mediation role with respect to consumer complaints and could also
sanction bus companies that fail to meet their obligations. Another
industry association suggested a mechanism for the immediate
compensation of passengers' failure to provide required accessible
service, generally analogous to ``denied boarding compensation'' in the
airline industry.
The Department believes that these industry suggestions have merit.
The final rule includes a version of the second idea. When an operator
is obligated to provide service on 48 hours' advance notice (whether in
charter/tour, interim fixed-route service, or elsewhere) or is
providing equivalent service (if a small fixed-route operator elects to
do so), either the required accessible vehicle is provided in a timely
manner or it isn't. Either the lift works or it doesn't. It is not
necessary to conduct an administrative proceeding to determine these
simple factual matters. It is not necessary to refer the question to a
board sitting in Washington, D.C.
Instead, when there is a failure to provide required service, the
operator would pay a predetermined amount of compensation to the
passenger. This is not a fine or a civil penalty that is paid to the
Department. It is paid to the passenger whose travel is prevented or
disrupted by the operator's inability to provide accessible service.
The amount of compensation is set by an increasing, graduated scale.
The first time a given operator fails to provide required service, it
pays the passenger $300. By the fifth such occurrence for any company,
the amount becomes $700. Assuming that operators' comments that they
can readily meet the 48-hour requirement are soundly based in reality,
occasions for paying this compensation should be infrequent. Lest
paying compensation to the occasional passenger simply be regarded as a
cost of doing business, the rule states that paying compensation is not
a defense in litigation brought to enforce compliance with the rule
(e.g., a ``pattern or practice'' lawsuit filed by the Department of
Justice under Title III of the ADA).
Stimulated Demand
There was considerable debate in the comments about the extent to
which accessible OTRB service will increase passenger demand. This
issue is important primarily for its effect on the projected net cost
of compliance with the Department's rule. The greater the stimulated
demand--new revenue trips generated by passengers with disabilities and
persons accompanying them--the lower the net compliance cost of the
rule.
Bus industry commenters asserted that the estimates of stimulated
demand in the regulatory assessment accompanying the NPRM were greatly
overstated. Many small bus companies related their own experience: in
many years of providing service, they said, they had received few if
any requests for service from passengers with disabilities. Even some
companies that had purchased accessible buses and, in a few cases,
promoted their use had received a miniscule number of requests for
accessible service.
More generally, industry comments cited the so-called ``Nathan
Study,'' a report prepared by a consultant for a large carrier for
purposes of this rulemaking, for the proposition that, based on
experience in a few situations in which limited fixed-route OTRB
service had been provided, stimulated demand could be expected to be
quite low (e.g., 13,600 trips annually for the largest intercity
carrier). This experience, commenters said, was more likely to be
representative of demand than transit or commuter bus experience,
which, because it involved shorter, less discretionary, trips, was
likely to produce higher ridership by passengers with disabilities.
Disability community comments said that there was a large untapped
market among people with disabilities for service. This market should
only grow larger with the aging of the ``baby boom'' generation, they
said. Transportation is a matter of great concern to the elderly and
disabled, and they will travel if they are assured that
[[Page 51680]]
the entire chain of a trip is accessible. Demand to date has been
suppressed by the unavailability of accessible service. It is no wonder
that many bus companies have few requests for service from disabled
passengers: the passengers know that service isn't accessible, and they
don't bother to seek service they know they can't readily use.
Commenters also referred to the substantially higher ridership
estimates of the OTA study. As has been the case in other modes,
commenters said, demand will grow as service improves and becomes
accecssible. This is likely to be true of the intercity bus industry
because it offers a unique service, which is the only available mode of
intercity service for many disabled passengers.
DOT Response: Experience has shown that once passengers with
disabilities are assured that accessibility is widespread they will
begin to take advantage of these services. Beyond this general point,
however, there remains wide divergence in estimates of potential new
ridership. The ``Nathan Study'' asserts that it anticipates 13,600
wheelchair passenger trips per year on accessible Greyhound service,
based on the mid-point of the trip results of on-going operations using
accessible OTRBs in Massachusetts and Colorado, and service
demonstration projects in Canada. This report does indicate, however,
that if made solely on the basis of the Denver Regional Transportation
District (RTD) experience, an estimate of demand might be as high as
35,000 trips per year by wheelchair users.
At the other end of the spectrum is the OTA report, which
essentially assumes that persons with disabilities would travel and
generate trips at the same rate as all of the citizens in the
population once OTRB fleets are fully accessible. The assumption would
result in 180,000 trips being made annually by persons using
wheelchairs over the whole intercity fixed-route service system. The
report goes on to note (pg. 95) that estimating travel demand is
notoriously difficult for services that have not been introduced.
Further, the Massachusetts and Canadian programs were not
representative of full-scale future accessible service because of
limited connectivity to the broader national system and the continued
existence of certain barriers to persons with disabilities. Further,
one can only conjecture how many of the trips estimated by OTA for the
cited populations are already being taken.
In preparing the Regulatory Assessment for the final rule, the
Department relied on estimates from a variety of sources, which varied
in their projections of stimulated traffic by a factor of seven. Given
the uncertainties involved in estimating demand generated by a system
that is not yet in existence, we have expressed our projections in
terms of a range with a high and low estimates.
For the high-end estimate presented in the assessment, it is
assumed that demand by wheelchair passengers and other mobility-
impaired passengers will grow substantially once there is full access
to a nationwide accessible OTRB system. The urban transit systems that
will provide connectivity in the form of entrance and egress for many
intercity OTRB trips will also be becoming more accessible as the ADA
continues to take effect. Many barriers will remain, however, and for
the future period with which this Regulatory Assessment is concerned it
is not expected even for purposes of the high-end estimate that there
will be achieved the universal accessibility assumed in the estimates
by OTA.
When persons with disabilities can travel, they will often take
along family members or personal assistants. Consistent with the data
in the American Travel Survey, the high-end estimate assumes that
approximately 17 percent of new patrons with disabilities will be
accompanied by family members. On the other hand, transit data suggests
little additional use of lift service by cane and crutch users, so this
portion of the estimate was reduced, compared to the NPRM.
The high estimate implies that new patronage by wheelchair users of
scheduled intercity OTRB service will be approximately 52,000 per year
once the fleets of Class I and other intercity regular-route operators
are fully equipped with lifts (i.e., 12 years into implementation of
the rule). It assumes that total stimulated traffic will grow to a
volume of trips of 182,000 annual trips, equivalent to 0.456 percent of
total current passenger traffic of about 40 million trips per year.
This percentage is made up of 0.15 persons in wheelchairs, 0.24 percent
persons with other mobility impairments, and 0.066 percent family
members or other persons accompanying these passengers. The Regulatory
Assessment's low estimate of stimulated traffic differs from the high
estimate in that the percentage of current traffic assumed to be
accounted for by new patrons in wheelchairs is 0.10 percent rather than
0.15 percent, with patronage by other mobility-impaired persons and
accompanying family members adjusted proportionately to 0.16 percent
and 0.043 percent, respectively, or 0.303 percent altogether. It would
result in a projection of approximately 121,000 total annual new trips
when Class I fixed-route fleets are fully accessible. It is expected
that wheelchair passengers and other mobility-impaired passengers and
their families will ultimately take advantage of between 171 and 262
thousand additional trips per year on fixed-route services and between
397 and 595 thousand trips on charter/tour services. It should be
pointed out that one of the sources of difference between the
industry's figures and the Department's is that the former concerns
demand at the beginning of a process leading to a fully accessible
system, while the latter projects demand once a fully accessible system
is in place, some years later.
While the high estimate of new patronage by wheelchair users
reflects available experience with accessible OTRB commuter services
offered by one transit operator, Denver RTD, this low estimate relies
more on experience with longer-distance intercity service that would
not have had any significant commuter-type patronage (in particular the
programs by Canada Coach Lines) and the transit experience of Golden
Gate Transit and the New York City Transit. Both estimates involve a
modest reduction in projected demand, compared to the regulatory
assessment prepared in connection with the NPRM.
Financial Burdens/Loss of Marginal Routes
A basic argument the bus industry made against the NPRM's approach
was that it was too costly and imposed undue financial burdens on the
industry, with negative effects not only on the companies themselves
but on passengers who travel on marginal, especially rural, routes.
Commenters emphasized the financial fragility of the industry generally
and individual companies, noted that many companies typically have low
profit margins and expressed the concern that the costs of
accessibility proposed in the NPRM would drive some companies out of
business. They mentioned the historical trend toward shrinking
passenger volume and points served by intercity buses. They said that,
in a number of respects, the NPRM's regulatory assessment understated
the actual costs imposed on carriers. In this context, commenters
argued that the actual costs imposed on carriers constituted an undue
financial burden, because they would hamper the rebuilding of the
capital investment of bus companies, endangering their attempts to
revitalize the passenger bus business.
Bus industry commenters also provided lists of points that they
[[Page 51681]]
thought could well lose service if they were required to obtain
accessible buses. The reasoning of the operators is that, in order to
cover compliance costs, they would have to eliminate economically
marginal routes, since they could not afford to raise fares across the
board and remain competitive. Greyhound listed 144 points it said would
face the loss of intercity service. Combining this projection with
information from other carriers, an industry association projected that
278 points would lose all service, and another 378 would lose frequency
of service or connections. The commenter projected that the loss of
service to these points could result in an annual loss of 208,000
passenger trips, a considerably larger number of trips than the
stimulated demand that the regulation would create. This commenter
believed that the service would not disappear overnight, but rather
incrementally as old equipment needed to be replaced by more expensive,
accessible new equipment that companies would choose not to acquire.
Disability community commenters pointed to the TEA-21 subsidy as
mitigating financial impacts on carriers. They also suggested that
industry comments seriously underestimated the operating costs of an
on-call system, which were continuing, in contrast to the discrete
capital costs of accessible buses. They also criticized the objectivity
and data in industry cost projections. Every business in America has to
comply with ADA accessibility mandates, they said, generally without
subsidy, and bus companies could do so as well.
DOT Response
a. Financial Situation of Fixed-Route Carriers
Throughout the early 1990s, most intercity carriers experienced
financial difficulties, to a great extent as a result of Greyhound's
1990 drivers' strike and bankruptcy, plus two different Greyhound plans
to restructure service. Many other OTRB carriers' earnings are very
dependent on the state of Greyhound's service, over 30 percent of which
involves interlining with other carriers. In 1996 and 1997, all but a
few Class I intercity carriers began to creep into the black, or break
even.
There is naturally some variation in the financial strength of
different carriers. For example, the Class I financial reports (for the
year 1997) filed with DOT's Bureau of Transportation Statistics show
privately held Peter Pan Lines (Massachusetts), much smaller than
Greyhound but the next-largest carrier in terms of regular-route
intercity revenues and its effective competitor in certain heavy-
density Northeastern markets, generating operating expenses (before
interest and taxes) at a rate of 86 percent of revenues as contrasted
with 97 percent for Greyhound Lines itself.
However, when viewed as a whole, the industry's financial position
continues to center on Greyhound, the extensive debt financing of which
generates an annual interest expense that is still substantial compared
to operating earnings. Greyhound and its consolidated subsidiaries have
incurred net losses in all but one year since the driver's strike,
ranging from a high of $77.4 million (1994) down to $6.6 million
(1996). Their loss for 1997 was $16.9 million although they would have
reported $8.4 million in positive net income had it not been for an
extraordinary expense charge taken that year in connection with a re-
financing transaction that spread their required debt repayments
further out into the future.
According to Greyhound, in 1995, 1996 and 1997, it posted revenue
and ridership increases (the first since 1991) and has realized a
dramatic turnaround by streamlining operations, lowering fares, hiring
more drivers, and adding long-haul services. It is beginning to restore
infrastructure, and reduce fleet failure rates and high maintenance
costs, by replacing an aging fleet of 15-20-year-old buses. It has also
increased its package-express business, in part because of the UPS
strike in August 1997. In July, 1997 Greyhound bought Carolina
Trailways for $25.3 million cash, debt assumption and stock, of which
$20.4 million was cash, and in August of that year purchased Valley
Transit for $19 million in cash. During 1996-97, Greyhound leased 384
new buses (without lifts) financed by seven institutions. It has also
committed to acquire 80 new lift-equipped buses through 1999, of which
20 have already been ordered. Greyhound raised fares by four percent
last year on selected routes (while increasing their overall revenues,
according to filings the company made with the Securities and Exchange
Commission), and also made selected fare reductions on other route
segments.
Thus, Greyhound appears to be headed for recovery along with most
of the other Class I intercity/regional carriers. Some small carriers
continue to face financial hardships and cannot afford to replace aging
fleets. The requirements of the final rule for small operators,
however, should significantly mitigate regulatory impacts on them.
b. Reductions of Passenger Traffic and Points Served
Commercial intercity carriers are also concerned about their
limited ability to ``pass on'' to current passengers the costs of
accessibility improvements. This can be expressed in economic analysis
terms as the elasticity of overall demand for their service with
respect to average price charged. The Department is not assuming that
fares could be raised by an amount sufficient to completely cover the
costs of compliance with the final rule by current OTRB operations in
all U.S. markets without any effect at all on existing patronage. By
definition, this would demonstrate perfect inelasticity of demand over
that range of price change, which industry representatives suggest is
not the case.
The economic model used in the regulatory assessment focuses on an
elasticity of demand of -1.0. If this theoretical assumption is
correct, and Greyhound needed to add about 2.1 percent to its ticket
prices to wholly recover compliance costs of the rule, it could lose
2.1 percent of its revenues, which could be approximated as 2.1 percent
of passenger trips being lost. Subject to appropriations, the TEA-21
subsidy would cut these figures by about a third. For Greyhound, this
(i.e., the subsidized price increase level of 1.33%) would amount to a
potential loss of 233,000 passenger trips out of 17.5 million.
Extrapolating to the 40 million carried by large intercity carriers in
1997, this would amount to a 532,000 passenger trip decline. The
offsets for stimulated traffic would range from about 53,000 to 80,000
passenger trips for Greyhound, and 85,000-127,000 passenger trips for
the fixed-route system as a whole.
To the best of the Department's knowledge, there are no stated
preference or revealed preference studies of the actual impacts of
price rises in intercity bus travel that would empirically confirm or
disconfirm the hypothesis derived from this model that a 1.3 percent
price increase would have these effects. There is some room for
question given the low absolute price increases involved. For example,
taking into account the TEA-21 subsidy, the compliance cost of the rule
would add 46 cents to the cost of Greyhound's $34.00 average fixed-
route ticket. In the real world, would a transit-dependent consumer of
an average intercity bus trip decline to take the trip because the
ticket cost $34.46 instead of $34.00? (We note that Greyhound recently
raised fares by about four percent on selected routes.) There is a
considerable
[[Page 51682]]
uncertainty surrounding this model which makes it difficult to say with
confidence what the actual magnitude of the effects of a price increase
would be, and a certain degree of caution in using these estimates is
in order.
With respect to cutting marginal routes, Greyhound cites a list of
19 marginal routes which could lose service. The Greyhound System
Timetable for June 24, 1998, shows that the 144 points on these 19
routes represent 6 percent of the system's 2400 total points and 1.5
percent (on the basis of July operations) of their 1997 bus-miles.
However, 45 of the 144 points were not listed in the timetable as
having any agency service at all. Two routes, encompassing 27 points,
are currently subsidized by the state of Pennsylvania.
An industry association comment enlarged the list of single-service
points that might be abandoned to 287, but we have reason to question
some them. Most of the routes cited by this comment are served by small
carriers, which have the option of buying used buses instead of
abandoning the routes. The ABA projection appears not to take this
possibility into account. In addition, the small operator provisions of
the final rule are likely to lower significantly the number of
potential number of routes cut by small operators.
Moreover, as industry comments themselves pointed out, there has
been marked shrinkage of the number of passengers and number of points
served by the intercity bus industry in recent decades. This appears to
have been caused by changes in the economy, passengers' travel
preferences, and, to an extent, by management decisions of bus industry
members. Certainly accessibility requirements had nothing to do with
it. It is likely, in the future as in the past, that broader economic
circumstances will have much more to do with the financial health and
route structure of bus companies than any specific requirement of this
or any other regulation.
c. Overall Costs.
The Department's estimates of overall compliance costs of the rule
are set forth in the tables below. They are summarized from material in
the Department's regulatory assessment. Net costs are calculated by
subtracting the projected revenues from stimulated demand generated by
service complying with the rule from the overall, or gross, costs. All
costs are year 2000 present value discounted costs. The following
tables do not include the effect of the TEA-21 subsidy or other
financial assistance available to bus companies.
Overall Gross and Net Costs
[Millions of Year 2000 dollars]
------------------------------------------------------------------------
Gross costs Net costs
---------------------------------------
22-Year Annual 22-Year Annual
------------------------------------------------------------------------
Fixed-route..................... 205-254 19-23 152-219 14-20
Charter/tour.................... 38-80 3-7 16-66 1-6
---------------------------------------
Total..................... 242-334 22-30 168-285 15-26
------------------------------------------------------------------------
Costs Expressed as Costs per Stimulated Trip
[Year 2000 dollars]
------------------------------------------------------------------------
Gross costs Net costs
basis basis
------------------------------------------------------------------------
Low Estimate of Stimulated Trips........ 67.91-93.47 54.23-79.71
High Estimate of Stimulated Trips....... 45.01-61.95 31.15-48.09
------------------------------------------------------------------------
d. Conclusion
The conclusion the Department draws from its review of the economic
issues in the rulemaking is that, while there are identifiable economic
impacts on the bus industry, these impacts are not so great as to
preclude the Department reasonably from requiring the accessibility
requirements of the final rule. The ADA does not immunize private
parties, including bus companies, from some of the burdens of ensuring
nondiscrimination for people with disabilities. The economic impacts of
the rule are not sufficient to constitute an ``undue burden'' on bus
companies. Given the generally improving financial health of the fixed-
route bus industry, the relatively modest net, and even gross, costs of
the rule are very unlikely to have devastating effects on the industry,
of a magnitude that could be fairly regarded as unduly burdensome. They
are necessary, ``due'' burdens of achieving the objectives of the ADA
by providing meaningful, nondiscriminatory service.
In the context of industry arguments about allegedly undue
financial burdens and commenters' claims that the OTRB industry is
unfairly impacted by Federal requirements, compared to other modes, we
believe it is useful to review the sources of direct and indirect
Federal financial assistance authorized for the OTRB industry. Some of
this assistance is specifically directed at making OTRBs accessible,
while other funding sources represent general public subsidies to the
industry. The following table summarizes the financial assistance
applicable to FY 1999 through FY 2003:
[Dollars in millions]
------------------------------------------------------------------------
Annual
Program average Total
------------------------------------------------------------------------
Rural Transportation Accessibility Incentive
Program (TEA-21, Sec. 3038).................. *$4.86 *$24.3
[[Page 51683]]
Non-Urbanized Area Formula Program, intercity
bus 15% set-aside (49 U.S.C. Sec. 5311)..... *31.4 *157.0
Motor fuel tax exemption...................... *33.5 *167.5
-------------------------
Total................................... 69.8 348.8
------------------------------------------------------------------------
*--authorized funds.
The Rural Transportation Accessibility Initiative is the TEA-21
subsidy dedicated to OTRB accessibility. This program authorizes $24.3
million (including $17.5 million specifically for fixed-route
operators) in guaranteed funds to subsidize up to 50 percent of capital
and training costs of OTRB accessibility.
Since 1992, states have been required to make funds available for
fixed-route intercity bus transportation. Each state is required to
expend 15 percent of the funds received through FTA's Non-Urbanized
Area Formula Program for this purpose. FTA guidance specifies that
these funds may be used to purchase vehicles or vehicle-related
equipment such as wheelchair lifts. The guaranteed TEA-21 funding
available for the 15 percent set-aside will more than double between FY
1997 and FY 2003, from $17 to $36 millon per year. The 15 percent set-
aside can be waived only if a state's governor certifies that the
state's intercity bus service needs are being adequately met. This
program provides states a means to respond to concerns that costs
associated with accessibility could result in the termination of rural
bus routes.
As noted above, OTRBs have a significant fuel tax break. OTRBs are
exempt from all but three cents of the Federal Motor Fuels Tax on
diesel and other special fuels. The value of this exemption is 21.3
cents per gallon,, amounting to an annual tax saving for the industry
of $33.5 million (based on 1996 Federal fuel consumption statistics).
In addition to the sources of assistance shown in the table, there
are two additional sources of Federal funding for OTRB services. While
these funding sources do not provide dedicated funding for OTRB
services, and other projects compete for funds, state and local
officials who are concerned about the continuation or expansion of OTRB
services (e.g., on rural or marginal routes) can take advantage of
them.
First, a new provision in TEA-21 expands the highway Surface
Transportation Program (STP) eligibility to fund private intercity bus
capital expenses (TEA-21 section 1108). This amendment gives states two
additional ways of using STP funds: directly, relying on the new TEA-21
language adding intercity bus terminals and equipment as eligible
expenditures, or indirectly, through transfers of STP funds to the FTA
Non-Urbanized Area Formula Grant Program, described above. The STP
program averages $5.5 billion annually during the TEA-21 authorization
period. Second, the Congestion Mitigation and Air Quality (CMAQ)
program's funds are eligible for support of OTRB service. The CMAQ
program averages $4.1 billion annually during the TEA-21 authorization
period.
The Department emphasizes that these sources of Federal financial
assistance are not essential to the Department's ability, as a matter
of law or policy, to impose the nondiscrimination and accessibility
requirements of the final rule. Requiring compliance with civil rights
requirements like those of the ADA is not contingent on the
availability of such assistance. However, in assessing the impact of
this rule, it is fair to note the fact that such assistance is
available. We note also that the amount of this assistance is well in
excess of the total compliance costs of the rule.
Notwithstanding the modest total costs of the rule. and the
considerable Federal financial assistance available, the Department is
concerned about the overall economic impact of the regulation and its
impact on particular companies. The Department is acting on this
concern in several ways. These include the special provision for small
mixed-service operators, the time extension mechanism for fleet
accessibility deadlines for large fixed-route carriers, and the absence
of a fleet accessibility requirement for small fixed-route operators
and demand-responsive operators, discussed above.
In addition, with respect to small fixed-route operators, the
Department is adding another provision designed to reduce potential
economic impacts. Rather than obtaining accessible buses, a small
fixed-route operator can commit to providing equivalent service to
passengers with disabilities. This service, which has to meet existing
part 37 criteria for equivalent service, must also provide service to a
passenger in his or her own wheelchair. The Department is not
prescribing the form of this equivalent service, but it could involve
an alternative vehicle (e.g., an accessible van) that the operator
would provide on short notice to carry a passenger where that passenger
would have gone on the operator's bus.
The Department is also adding a regulatory review provision to the
final rule. This review provision commits the Department to conduct
reviews of the provisions of the rule for demand-responsive and fixed-
route service, including data concerning accessible buses, advance
notice service, costs and ridership in 2005-2007. This review will
allow the Department to make appropriate changes in any provisions of
the regulation, based on actual experience concerning costs, service
and other matters. We note that comments from the bus industry
supported data collection for this purpose and the idea of reviewing
regulatory requirements after some time had passed (though bus industry
commenters would have preferred to wait until after such a review
before requiring fully accessible fixed-route service). Aside from this
review provision, the Department will continue to evaluate relevant
data about implementation of the rule, its costs and other effects,
available funding, and the success of bus companies at providing
accessible service as part of our ongoing oversight of ADA compliance.
Environmental Issues
Bus industry commenters made two related environmental arguments.
The premise of both arguments is that bus companies will respond to the
costs of compliance with the rule by reducing marginal, especially
rural, routes. Significant numbers of points and passengers will lose
intercity bus service as a result, the commenters assert.
[[Page 51684]]
Since intercity bus passengers are disproportionately low-income
persons, including members of minority groups, the industry argued that
Department should consider the ``environmental justice'' effects of the
proposed rule under Executive Order 12898 and a DOT Order implementing
it. In addition, industry comments asserted that reductions in bus
routes would lead more people to drive their cars on trips, increasing
air pollution. In addition, there would be increased fuel usage because
of heavier equipment on buses, needing to keep buses running longer at
stops to operate the lifts, etc. These factors should be the subject of
an environmental impact statement, pending which the Department should
withdraw the rulemaking.
DOT Response: As noted above, the premise of these arguments is
that significant adverse environmental and environmental justice
effects will flow from the Department's accessibility requirements,
since companies will respond to these requirements by cutting routes.
This premise is flawed in two important respects. First, the economic
effects of the final rule, particularly but not only with respect to
small entities, are greatly mitigated by the variety of steps the
Department has taken in response to comments on the NPRM and the
significant financial assistance available to operators. These
provisions are likely to reduce significantly the extent to which many
companies would choose to respond to the requirements of the rule by
reducing service. Absent the route reductions, the environmental and
environmental justice impacts alleged by industry comments effectively
disappear.
Second, route reductions, and any consequent environmental or
environmental justice effects, are not mandated by the final rule. To
the extent they occur at all, route reductions are the result of free
choice by the bus companies themselves. If a bus company's costs
increase for any reason (e.g., higher capital costs, high debt service,
increases in fuel prices, increases in labor costs, as well as
regulatory compliance), the company must decide how to deal with the
increased cost. There is wide variety of potential responses. Does the
company raise fares? Does it reduce service? Does it accept a lower
profit margin? Does it seek additional subsidies? When a company
chooses one or a combination of responses to increased costs, its
choice is likely to have consequences for its customers. These choices
are the proximate causes of the consequences to customers.
One point that disability community comments made, and bus industry
comments did not emphasize, is that people with disabilities are
disproportionately poor. If they live in rural areas, they are likely
to have even fewer transportation alternatives than other persons. This
group, which has traditionally been underserved by the bus industry,
would receive service they can use under this rule, often for the first
time. It is appropriate, in an ADA rulemaking, to pay particular
attention to the needs of people with disabilities in determining what
policy to pursue.
The Department will place an environmental assessment (EA) in the
docket for this rulemaking. It is our judgment that the environmental
effects of the rulemaking are insufficient to call for the preparation
of an environmental impact statement (EIS). The EA will address the
industry's air quality arguments in more detail. We would note a few
points here, however. The primary air quality argument made by the
industry is that people who lose bus availability because of industry
decisions to cut service will take trips by car. This forgets that
people often ride buses precisely because they are transit dependent
(e.g., according to information in the docket, 44 percent of intercity
bus passengers do not own a car and 60 percent do not own a car capable
of making a 500-mile trip). This substantially limits the extent to
which ex-bus passengers are in a position to substitute car trips. In
addition, the industry arguments with respect to running buses longer
to operate lifts and therefore increase emissions appear to ignore
industry commenters' assertion that, under the industry's favored
approach, there would no fewer lift boardings than under the
Department's requirements. Moreover, there would need to be some
``deadhead'' trips in order to meet 48-hour advance reservations. These
additional trips would probably add to the total of bus emissions.
The Department finds that this rule has no significant
environmental impacts that would warrant either the preparation of a
full EIS or the withdrawal of the rulemaking.
Rest Stops
The NPRM proposed that operators of accessible buses would have to
permit passengers with disabilities to use the lift to get off and back
on the bus at rest stops. It proposed that operators of inaccessible
buses would have to provide deboarding and reboarding assistance to
passengers with disabilities at rest stops, as long as doing so would
not unreasonably delay the trip.
Disability community commenters strongly opposed the proposal
concerning inaccessible buses. They said the ``unreasonable delay''
language did not protect the rights of passengers to have
nondiscriminatory access to rest stop facilities. Operators should not
have the inhumane discretion to determine when, or for how long, a
passenger with a disability can use a restroom, they said. Moreover,
all or some rest stop facilities themselves should be required to be
accessible, so that passengers did not get off buses only to confront
an inaccessible restroom.
Commenters proposed two requirements beyond those discussed in the
NPRM. First, while acknowledging that the ADA does not permit the
Department to require the installation of accessible restrooms on buses
if doing so will result in the loss of seats, some comments suggested
that many operators now purchase buses with larger seating capacities
than Congress contemplated in 1990 when it enacted the ADA. One could
install an accessible restroom and have no fewer seats than Congress
intended a bus to have at that time, they said, complying with the
intent of the statute.
Second, with respect to buses with inaccessible restrooms traveling
express routes with long intervals between rest stops, operators should
be required to make unscheduled rest stops to accommodate passengers
who cannot use the on-board restroom. This is the only way, commenters
said, to provide necessary and nondiscriminatory service to passengers
with disabilities, who otherwise would unfairly have to take
uncomfortable steps (such as dehydrating themselves before a trip) to
adjust to the denial of restroom facilities.
Bus industry commenters generally supported the NPRM proposal. They
asked for additional guidance on how to determine whether a delay was
unreasonable, suggesting that schedule disruption should be an
important consideration. These commenters strongly opposed the
disability community request for unscheduled rest stops (or more
frequently scheduled rest stops) on express bus runs. They said it
would fundamentally alter the nature of express service by creating
delays that would make it very difficult to meet schedules, causing
chaos with respect to interline connections, and reducing
competitiveness with other modes of transportation. Industry comments
also took the view that most rest stops were either accessible or
becoming accessible,
[[Page 51685]]
and that bus operators should be able to make use of those that were
not on the same basis as other persons or businesses.
DOT Response: When the final rule's requirements begin to apply to
an operator, that operator will have to ensure that an accessible bus
(or, in some cases, equivalent service) will be provided to passengers,
either routinely or on 48 hours' advance notice. For this reason, the
need to provide boarding assistance to paasengers at rest stops should
occur only in rare cases (e.g., when there are more wheelchair users on
a bus than there are securement locations). Situations involving
transportation of wheelchair users on inaccessible vehicles should
occur rarely if at all after 2000-2001.
The Department is persuaded by disability group comments that
operators transporting disabled passengers have an obligation to assist
passengers on and off buses at rest stops, even on such rare occasions.
To stop at a restroom or a restaurant, allow everyone else to get off
the bus and use the facilties, but refuse to assist wheelchair users or
other persons requiring boarding assistance in leaving the bus, would
treat the latter class of passengers differently from all others based
on their disability. It is difficult to square such different treatment
with the language and purposes of the ADA.
The Department is not persuaded by disability group comments that
we have the discretion to require accessible lavatory units on OTRBs as
long as it will not result in fewer seats than on a typical 1990 OTRB.
It is better to read the statute to preclude a requirement for
accessible restrooms in any situation in which installing such a unit
would reduce the number of seats to less than it would otherwise be. If
a 55-seat capacity bus would have space for only 51 seats after an
accessible restroom is installed, we believe that this is a seat loss
for the bus even though more seats remain available than on a 1990-
model 47 passenger bus.
Rest stops themselves are Title III (or sometimes Title II)
facilities for ADA purposes. Many, though not all, are or will become
accessible. As a general matter, we do not believe it is fair to
require organizations who bring people to these facilities to be
responsible for the facilities' accessibility. It would be going too
far, in our view, to mandate that bus companies stop only at facilities
that are actually accessible. Nevertheless, there are some situations
in which it is appropriate to impose obligations on bus operators. For
example, if the bus company owns or controls a facility (e.g., a bus
station) and uses the facility as the place where it makes rest stop
services available to passengers, then use of the facility effectively
becomes part of the bus company's package of transportation services.
This is also true if the bus company contracts with a facility to
provide rest stop services (e.g., a tour bus company contracts with a
restaurant as a place where the bus will make a food and restroom
stop). In these cases, it is reasonable to insist that the bus company,
on its own or through a contractual relationship, ensure the compliance
of the facilities with ADA requirements.
Unscheduled rest stops are a difficult issue. On one hand, if a bus
takes three hours to go between Points A and B with no stops and there
is an inaccessible restroom on board, non-disabled passengers have the
chance to go to the bathroom over the three-hour period and disabled
passengers do not. This facially different treatment raises a
discrimination issue under the ADA. On the other hand, if a bus making
such a trip is scheduled to interline with another company's bus at the
next destination, and incurs an unscheduled 30-minute delay because of
a rest stop request, the schedule and transportation for other
passengers could be disrupted. Such disruptions, and other effects
mentioned in industry comments, could be more than trivial.
The Department believes that, since both sides of this issue have
merit, it is reasonable to find a middle-ground solution. The final
rule will require bus companies to make a good faith effort to
accommodate the requests of passengers with disabilities for an
unscheduled rest stop, but will not require the bus company to accede
to such a request when doing so would unreasonably delay the trip or
disrupt service for other passengers. The bus company would retain
discretion with respect to making the unscheduled stop, but would owe
the passenger an explanation for a decision not to make the stop.
Other Issues
a. Interlining
Disability community commenters raised the issue of interlining.
When a passenger buys a ticket or makes a reservation through one
carrier for service that involves transfer to another carrier's bus,
commenters said, the carrier should have to ensure that accessible
transportation is provided for the entire trip, so no one is stranded
at a transfer point. While not speaking of this issue directly, some
bus industry comments did allude to their ``service-based approach''
being able to handle this matter.
To provide clarity concerning interlining, the Department has added
a section giving the carrier making the arrangements for the interline
trip the responsibility for communicating to other carriers involved
about the need for accessible service. Each carrier would be
responsible for actually providing the service for which it is
responsible, however.
b. Interim Service
There were few comments concerning the interim service provisions
of the NPRM. Bus companies said they could comply, since the interim
provisions were similar to the service-based approach they support.
Disability community commenters said that the provisions were
acceptable on an interim basis, since full fixed-route accessibility
would be required later. While there were few comments that directly
pertained to the time frames for providing interim service, carrier
comments emphasized the readiness of the carriers to provide ``service-
based'' transportation in the near future. Given that there are two or
three years between now and the application dates of the rule it is
reasonable to conclude that an additional two years is not necessary
for carriers to provide interim service in accessible buses. In
addition, retaining the two-year delay would mean that, for passengers
of most of the operators who are small entities, it would be five years
before they could count on receiving accessible service. Consequently,
the final rule reduces the proposed phase-in period in half and calls
on fixed-route carriers to begin 48-hour advance notice interim service
in October 2001 or 2002.
c. Training and Maintenance
Disability community comments emphasized the importance of training
of personnel and maintenance of accessible features. There were few
comments on these subjects from bus industry commenters. Training and
maintenance requirements were proposed in the NPRM. The final rule
clarifies the content of the training requirements and specifies the
lift maintenance requirement, which is similar to that for other modes.
d. Discriminatory Actions
Disability community commenters suggested that certain alleged
practices of the bus industry under the current interim regulations
should be proscribed (e.g., using traveling companions or paramedics to
assist passengers' boarding, without the passengers' consent;
unjustified denials
[[Page 51686]]
of service). We have added a provision enumerating several prohibited
practices. We would note that most of the occasions for the problems to
which this section refers should be much reduced when the interim
service and ultimate accessibility requirements of the new rule are
implemented, since accessible vehicles will be used for virtually all
trips for passengers with disabilities beginning October 2001/2002.
e. Additional Passengers Using Wheelchairs
In addition, in response to some comments from both disability
community and bus industry parties, we have specified that, if there
are more wheelchair user passengers than securement locations on a
given bus, ``extra'' passengers would be given the opportunity to
receive boarding assistance with a transfer to a vehicle seat. If the
passenger declined this offer, the bus company would not have to
provide transportation to the passenger on that run.
f. Technical Accessibility Standards
Bus manufacturers and some industry commenters provided technical
comments on the proposed bus accessibility standards proposed jointly
by DOT and the Access Board. The Department is in agreement with the
responses to the Access Board to these comments in its rulemaking
document (e.g., with respect to door height and lighting issues), also
published today, and we are adopting the Access Board's guidelines as
an amendment to 49 CFR part 38. These standards determine what an
accessible OTRB looks like for purposes of subpart H of part 37.
g. Definition of an OTRB
A few bus industry commenters expressed the concern that companies
might seek to avoid requirements by acquiring buses that did not fit
the statutory and regulatory definition of an OTRB. If any company
actually contemplates such a tactic as a means of avoiding ADA
accessibility requirements, it would not achieve its objective. A bus
that does not fit the definition of an OTRB is simply a vehicle subject
to the normal accessibility requirements of Title III of the ADA and
part 37. Such a bus would not benefit from the special provisions
applicable to OTRBs. For example, a fixed-route provider buying a new
non-OTRB would have to buy an accessible bus. A demand-responsive
provider buying a new non-OTRB would have to buy an accessible bus or
provide equivalent service.
Section-by-Section Analysis
Section 37.3--Small Operator Definition
This section defines a Class I operator as a large operator. (Class
I carriers are defined as carriers with $5 million more in gross annual
operating revenues, adjusted by the current Producer Price Index of
Finished Goods, compared to 1986 as a base. The current figure is $5.3
million.) Anyone else is a small operator. If companies are affiliated,
in the sense of Small Business Administration size regulations (see 13
CFR Part 121), their revenues are added together for purposes of
determining size. For example, a group of small companies owned or
controlled in common by a holding company or conglomerate would be
viewed as affiliates, whose revenues would be added together to
determine whether they were treated as a small or large operator for
purposes of the rule.
Section 37.181 Application Dates
This rule will become effective in October 1998. It will begin
applying to large entities in October 2000 and to small entities in
October 2001.
Section 37.183 Purchase or Lease of New OTRBs by Operators of Fixed-
Route Systems
Beginning October 2000, buses purchased or leased by large fixed-
route providers must be accessible. An accessible bus is one that meets
Access Board/DOT standards (i.e., in 49 CFR Part 38). This requirement
applies to buses delivered after that date, even if they were ordered
earlier. Small fixed-route providers must comply with the same
requirement beginning October 2001. However, instead of complying with
this requirement, a small fixed-route operator can choose to provide
equivalent service to passengers with disabilities, in a vehicle (it
may be an alternative vehicle) that permits a wheelchair user to ride
in his or her own mobility aid. Equivalent service is defined by
Sec. 37.105. Essentially, equivalent service is service that in terms
of time, destination, cost, service availability etc. is parallel to
that provided non-disabled passengers. Fixed-route operators are not
required to purchase accessible used buses. Retrofitting existing buses
for accessibility is not required.
Section 37.185 Fleet Accessibility Requirement for OTRB Fixed-Route
Systems of Large Operators
Large fixed-route operators must ensure that 50 percent of the
buses used for fixed-route service are accessible by October 2006. They
must ensure that 100 percent of the buses in these fleets are
accessible by October 2012. However, operators can ask for a time
extension past these dates. The Department will consider such requests
based on the three factors listed in the rule. A bus company that had
disproportionately ``stocked up'' on inaccessible buses between October
1998 and October 2000 or that had demonstrated poor compliance with the
rule would not be in a position to make a strong case for a time
extension.
Section 37.187 Interline Service
This section requires communication among different bus companies
involved in an interline trip. The first responsibility falls on the
carrier with whom the passenger initially makes a reservation or buys a
ticket for an interline trip. It must communicate with the other
companies involved with the trip, who have a responsibility to maintain
open channels of communication and pay attention to communications they
receive. The other companies retain full responsibility for actually
providing service to the customer on their legs of the trip.
Section 37.189 Service Requirement for OTRB Demand-Responsive Systems
Beginning October 2001 for large entities, and October 2002 for
small entities, demand-responsive operators must provide an accessible
bus to any passenger who requests it 48 hours in advance. There is no
requirement on demand-responsive operators to acquire their own
accessible buses and no fleet accessibility requirement. Rather, when a
timely request is made, the operator must find a bus and get it to the
location where it is needed. Even if the request is made closer to the
time of travel than 48 hours, the operator must make a reasonable
effort to locate an accessible bus and provide it to the passenger.
The rule notes that an operator need not fundamentally alter its
reservation policies or displace other passengers to comply with this
requirement. The examples in the rule text illustrate how this
principle works.
Section 37.191 Special Provision for Small Mixed-Service Operators
This provision applies only to a subset of small operators. If a
small operator uses 25 percent or less of its buses for fixed-route
service, with the rest being used in demand-responsive service, it can
provide 48-hour advance reservation service for everything it does,
fixed-route as well as demand-responsive. It would not have to obtain
accessible buses of its own, beyond the extent necessary to
successfully provide
[[Page 51687]]
advance notice service. This exception to the normal rule that advance
notice service is not permitted for fixed-route service is placed in
the rule in recognition of the special situation of such small mixed-
service operators. Use of this provision by small mixed-service
operators is optional. Their fixed-route service can also comply with
this subpart by acquiring accessible buses or providing equivalent
service, as provided in Sec. 37.183(b).
Section 37.193 Interim Service Requirements
Beginning October 2001 or 2002, as applicable, a fixed-route
operator must provide 48-hour advance reservation service. The operator
must keep providing this service until and unless its fixed-route fleet
consists entirely of accessible buses. For example, if a small operator
never has a 100 percent accessible fleet, because it continues to
purchase only used buses, then it must meet this interim requirement
indefinitely, at least for that part of its service that is not fully
accessible. For example, if a small operator has two routes, and one
uses accessible buses for all trips and the other does not, interim
service would be maintained only for the latter route.
Section 37.195 Purchase or Lease of OTRBs by Private Entities Not
Primarily in the Business of Transporting People
This section states, for clarity, the ``private not-primariles''
are subject to the same rules as ``private primarilies'' for OTRB
accessibility purposes. The NPRM stated somewhat different requirements
for the two categories, and there were no comments on the subject, but
for the final rule it made more sense to make the requirements
parallel.
Section 37.197 Remanufactured OTRBs
There were no comments on this section of the NPRM, which is
retained without change. It is drawn from remanufactured bus
requirements elsewhere in part 37. We did add a note that
remanufacturing an OTRB as an accessible bus would be required only in
situations where a new OTRB would have to be accessible.
Section 37.199 Compensation for Failure to Provide Required Vehicles
or Service
This is an accountability mechanism for advance notice and
equivalent service. If an operator fails to provide the required
service, then the operator must pay compensation to the passenger. This
is not a civil penalty paid to the Department, but a sum sent directly
to the passenger whose travel plans were disrupted. No administrative
procedure is needed. For example, a passenger requests an accessible
bus on Monday for a trip taking place Thursday. On Thursday, is the
accessible bus at the appointed place and does its accessibility
equipment operate to allow the passenger to complete his or her trip
successfully? If yes, then there is no problem. If no, then the
operator pays the compensation to the passenger within seven days.
The reason for the failure doesn't matter. If the operator forgot
to obtain an accessible bus, or if the operator made a good faith
effort and couldn't find one, or if the operator found a bus but the
lift is broken, the result is the same. Compensation must be paid. Only
in rare situations in which no one receives transportation, for reasons
beyond the operator's control (e.g., a blizzard shuts down the East
Coast, and nothing moves for two days; an accessible bus is on the way
to make a timely pickup of passengers, is involved in a crash, and
never makes it to the pickup point), would the operator be excused from
paying compensation.
The compensation scheme is graduated. The amount of compensation
increases with each failure to provide transportation. For occasion 1
with passenger A, the company pays $300. For occasion 2 with passenger
B, the company pays $400, on up to $700 for the fifth and subsequent
such incidents in the company's history. To help prevent the payment of
compensation being regarded as simply a cost of doing business in lieu
of compliance, the rule notes that payment of compensation does not
immunize operators from ADA enforcement actions (e.g., litigation by
the Department of Justice).
We also note that refunds of fares paid by passengers with
disabilities for trips not taken as a result of an occurrence
triggering the compensation requirement do not reduce the compensation
requirement for carriers. For example, suppose a passenger has paid $50
in advance for a ticket, cannot travel because the operator fails to
provide an accessible bus in a timely manner, and receives a $50 refund
from the operator. If the operator was responsible for paying $300
compensation in this situation, the amount of compensation would still
be $300, not $250.
Section 37.201 Intermediate and Rest Stops
Whenever any OTRB makes an intermediate or rest stop, at which
passengers have the opportunity to get off the bus and use the
facilities that are available, passengers with disabilities must have
the opportunity to use the rest stop facilities. In the case of an
accessible bus, this means operating the lift mechanism to allow a
wheelchair user to get off and back on the bus. Under the final rule,
there should be few if any situations in which a passenger is traveling
in an inaccecssible bus, such that other means of boarding assistance
are necessary. (There could be situations in which boarding assistance
is needed for a passenger who has transferred to a vehicle seat because
securement locations are filled with other passengers.) In any case,
the bus company is responsible for providing whatever equipment and
personnel are needed to complete these tasks and taking the time
necessary to do so.
When a bus is making a lengthy express run (i.e., three hours or
more without a stop) and is equipped with an inaccessible restroom,
ambulatory passengers can go to the bathroom but many passengers with
disabilities cannot. In this situation, if such a passenger with a
disability makes a request for an unscheduled rest stop (whether at the
beginning of the trip or during the trip), the bus operator must make a
good faith effort to accommodate the request. Because an unscheduled
rest stop can potentially disrupt schedules and connections, however,
the rule does not require the bus company to make the unscheduled rest
stop. This decision is discretionary with the bus company. In a
situation where making the unscheduled rest stop would not unduly
disrupt schedules or connections, it would fair to expect the stop to
be made, however.
Bus companies sometimes, but not always, have a direct connection
with the facilities at which rest stops are made. When the bus company
owns, leases, controls, or has a contractual relationship with the
facility for rest stop purposes, then provision of the rest stop
facility is part of the service which a ticket buyer purchases. In
these situations, the bus company has an obligation to ensure that the
facilities meet ADA requirements.
Section 37.203 Lift Maintenance
This provision is not substantively changed from the NPRM. It
requires regular and frequent maintenance checks of lifts on OTRBs. The
section does not require daily tests of lifts. However, it is intended
to require frequent enough checks to ensure that any problems with lift
operation are caught in a timely fashion. It is also intended to ensure
that, when a lift is used to help a passenger board the bus,
[[Page 51688]]
it is not the first time all day the lift has been operated. The
section provides that a vehicle with an inoperable lift may be kept in
service for up to five days from the discovery of the problem, if there
is no substitute vehicle to be had. In such a situation, however, the
company operating the bus with the broken lift is not excused from
paying compensation under Sec. 37.199.
Section 37.205 Additional Passengers Who Use Wheelchairs
This section concerns a situation in which there are more
wheelchair users seeking to travel on a bus than there are securement
locations. Passengers would be assigned to the securement locations on
a first-come, first-served basis. Additional passengers would be
offered an opportunity to transfer to a vehicle seat. They would board
via the lift but would then have to be assisted to a vehicle seat
(e.g., through use of an aisle chair). The passenger's wheelchair would
be stowed in the baggage compartment, in the same way provided for in
Sec. 37.169.
If the passenger did not accept this offer, the passenger would not
have to be provided transportation on the bus. Assuming an accessible
bus had been provided for the trip, the bus company would not owe the
passenger compensation in this case.
Section 37.207 Discriminatory Practices
This section lists several prohibited practices, reflecting
concerns from disability community commenters about problems they had
encountered in bus service under Sec. 37.169. Given the provisions of
the final rule, it is likely that the situations involved with service
in inaccessible buses would occur very rarely, particularly after
October 2001/2002 when all advance notice service will be required to
take place in accessible buses.
Section 37.209 Training and Other Requirements
This section lists several sections of the Department's ADA rule
that are particularly relevant to OTRB service. This is not an
exclusive list. Bus operators must comply with all applicable portions
of the rule. With respect to training, the section lists a number of
tasks which bus company personnel must be trained to carry out
properly.
Section 37.211 Effect of NHTSA and FHWA Safety Rules
This section simply recites that OTRB operators are not required to
violate applicable NHTSA and FHWA safety rules. This section does not
mean that bus operators can decline to provide equipment and services
to passengers with disabilities because the operators believe there may
be safety risks or believe that NHTSA or FHWA should issue a rulemaking
on a particular subject.
Section 37.213 Information Collection Requirements
This section requires four different recordkeeping/reporting
requirements. The first has to do with 48-hour advance notice and
compensation. The second has to do with equivalent service and
compensation. In both cases, the section requires bus operators to fill
out a form when compensation has to be provided. The former section
requires part of a form to be filled out and provided to the passenger
when a request for advance-notice service is made.
The third has to do with reporting information on ridership on
accessible fixed-route buses. Fixed-route operators would separate out
data for lift boardings on 48-hour service and other service. The
fourth has to do with reporting information on the purchase and lease
of accessible and inaccessible new and used buses, as well as the total
numbers of buses in operators' fleets.
The purposes of these information collection requirements are to
provide data that the Department can use in its regulatory review (see
Sec. 37.215) and to assist in our oversight of compliance by bus
companies. Comments from both bus industry and disability community
commenters suggested that recordkeeping and reporting of this kind
would be useful for these purposes.
These information collection requirements are subject to Office of
Management and Budget (OMB) review under the Paperwork Reduction Act
(PRA). The Department will subsequently submit to OMB a PRA approval
request, including our estimate of the information collection burden
associated with these requirements. Because the Department has not yet
provided this package to OMB, we are keeping our docket open for 90
days, to ensure that interested persons have the opportunity to comment
on it to the Department as well as to OMB. The Department emphasizes
that this comment period concerns only the information collection
requirements of this section. Comments on other provisions of the final
rule will not be considered.
Section 37.215 Review of Requirements
This provision commits the Department to regulatory reviews of
subpart H. The review would take place in 2005-2006 for rules affecting
demand-responsive operators and 2006-2007 for rules affecting fixed-
route operators. The review would be based in part on the information
provided to the Department in the 37.213 reports. The purpose of the
review would be to determine whether a mid-course correction in the
provisions of the rules is appropriate (e.g., whether it would be
desirable to eliminate, modify, or make more stringent certain
provisions of the rule).
Chart Summarizing Final Rule, as Compared to NPRM
The following chart summarizes the provisions of the final rule,
compared to the NPRM:
------------------------------------------------------------------------
NPRM Final rule
------------------------------------------------------------------------
Applies to private OTRB operators Same.
beginning October 2000 (large
companies) or October 2001 (small
companies).
A small company is one that is not a Same.
Class I carrier (currently, a Class I
carrier is one with gross operating
revenues of $5.3 million or more).
Large and small companies providing Same for large companies; small
fixed-route service, if purchasing or companies have the alternative
leasing a new OTRB, must acquire an of providing equivalent
accessible OTRB. service.
Large and small companies providing Same deadlines for large
fixed-route service must meet fleet companies. Large companies may
accessibility deadlines. Deadlines are apply to the Secretary for a
for 50% fleet accessibility by October time extension if they have
2006/2007 and 100% fleet accessibility not obtained enough new buses
by October 2012/2013. A small company by those dates to replace 50
does not have to meet these or 100% of its fleet and meet
requirements if it does not obtain other conditions. No fleet
enough new buses by those dates to accessibility deadlines for
replace 50 or 100% of its fleet. small companies.
[[Page 51689]]
Large and small companies providing Demand-responsive providers are
demand-responsive service, if required only to meet the
purchasing or leasing new OTRBs, must service requirement.
obtain accessible buses unless they
meet service requirements. Companies
must meet 10% fleet accessibility
requirement by October 2004/2005. A
small operator does not have to meet
this requirement if it does not obtain
enough new buses by this date to
replace 10% of its fleet.
Companies providing demand-responsive Same requirement, but begins to
service must provide an accessible apply in October 2001/2002.
OTRB on 48 hours' advance notice. This
requirement begins to apply in October
2002/2003.
No equivalent provision................ Small mixed-service operators
(75% or more of whose fleets
are devoted to demand-
responsive service) can meet
requirements for both fixed-
route and demand-responsive
service through 48-hour
advance notice service.
No equivalent provision................ Fixed-route carriers who
interline are required to send
and receive information to one
another to ensure that all
accessible service needed for
a trip is provided.
Until October 2002/2003, all companies Advance notice interim service
must provide at least the interim with accessible buses begins
service required by Sec. 37.169. October 2001/2002.
After those dates, fixed-route
carriers with less than a 100%
accessible fleet must provide at least
48-hour advance notice service as
interim service.
No equivalent provision................ A bus company that fails to
provide 48-hour advance notice
service (e.g., demand-
responsive service, interim
service) or equivalent
service, where required by the
rule, must compensate the
passenger with a disability
who requested the service.
Compensation amounts range
from $300 to $700, depending
on the number of times the bus
company has failed to provide
required service.
Private entities not primarily in the These entities must meet the
business of transporting people must same requirements as ``private
obtain new accessible buses (fixed- primarily'' fixed-route or
route) or choose between obtaining new demand-responsive operators.
accessible buses and providing
equivalent service (demand-responsive).
If an entity remanufactures an OTRB to The requirement to
extend its useful life 5 years or remanufacture a bus to be
more, the remanufacturing must make accessible applies only in
the bus accessible, unless not situations where a new bus
technically feasible. would have to be accessible.
At rest stops, operator of an At rest stops, the bus operator
accessible bus would operate lift to would have to provide needed
permit passenger with a disability to assistance to allow passenger
get on and off the bus to use to use facilities.
facilities. Operator of an ``Unreasonable delay''
inaccessible bus would provide language deleted. Bus
boarding assistance for the same companies have obligation to
purpose, but need not unreasonably ensure ADA compliance by
delay bus to provide this service. facilities they own, lease,
control or contract with. On
express runs of 3 hours or
more, if bus has inaccessible
rest room, operator is
required to make good faith
effort to meet request of
passenger with disability for
unscheduled rest stop. The
operator is not required to
comply with the request, but
must explain to the passenger
the reason for any denial.
Bus companies must comply with Secs. Same, but training requirements
37.161, 37.165-37.167, and 37.173 are more specific.
(concerning maintenance of other
accessible features, lift and
securement use, other service
requirements, and training). Lift
maintenance also required.
No equivalent provision................ If there are more wheelchair
users on a given bus than
securement locations, bus
company must offer to provide
boarding assistance and
transfer to a vehicle seat. If
passenger declines the offer,
bus operator is not required
to transport the passenger on
that bus.
No equivalent provision................ Prohibited discriminatory
actions listed (e.g., denials
of service, use without
passenger's consent of non-
employees to provide boarding
assistance).
No equivalent provision................ Statement that NHTSA and FHWA
safety rules apply to OTRBs.
No equivalent provision................ Information collection required
concerning provision of
advance-notice and equivalent
service and compensation, lift
boardings, and bus
acquisitions. The Department
is seeking further comment on
this provision, in connection
with the Paperwork Reduction
Act review process.
No equivalent provision................ Department will conduct review
of rule's provisions in 2005-
2007.
------------------------------------------------------------------------
Regulatory Analyses and Notices
This is a significant regulation under Executive Order 12866 and
the Department's Regulatory Policies and Procedures, both because of
its cost impacts on the industry and the strong public interest in
accessibility matters. The Department has prepared a Final Regulatory
Assessment to accompany the rule, which we have placed in the docket
for the rulemaking. The Office of Management and Budget (OMB) has
reviewed this final rule and the regulatory assessment.
Under the Regulatory Flexibility Act, this proposal is likely to
have a significant economic impact on a substantial number of small
entities. Indeed, all but 21 of the approximately 3500 bus companies
covered by this rule are small entities. We have incorporated a
Regulatory Flexibility Analysis into the regulatory assessment.
The Small Business Administration Office of Advocacy commented on
the NPRM, recommending a service-based approach for small entities
coupled with an accountability mechanism. The final rule includes a
number of provisions
[[Page 51690]]
that are largely consistent with SBA recommendations:
Small fixed-route carriers have the alternative of
providing equivalent service, in lieu of obtaining accessible buses.
Small fixed-route carriers are not subject to fleet
accessibility deadlines.
Until their fleets are 100 percent accessible, small
fixed-route carriers would provide interim accessible bus service on a
48-hour advance notice basis.
Small charter/tour carriers do not have a fleet
accessibility percentage to meet and are not required to purchase
accessible buses beyond what they need to meet the requirement for 48-
hour advance notice service.
Small mixed-service operators (who devote 25 percent or
less of their fleets to fixed-route service) can meet all requirements
through providing 48-hour advance notice service
Small carriers do not have to obtain accessible used buses
or retrofit existing buses.
There is an accountability mechanism, of a type suggested
by an association representing small carriers, for failure to meet
service standards.
The regulatory review provisions can benefit small
carriers.
The Department has also placed an environmental assessment into the
rulemaking docket. This rule does not have Federalism impacts under
Executive Order 12612 sufficient to warrant a Federalism statement.
List of Subjects in 49 CFR Part 37
Buildings and facilities, buses, civil rights, individuals with
disabilities, mass transportation, railroads, transportation.
Issued this 17th day of September, 1998, at Washington, D.C.
Rodney E. Slater,
Secretary of Transporation.
For the reasons set forth in the preamble, 49 CFR Part 37 is
amended as follows:
PART 37--TRANSPORTATION SERVICES FOR INDIVIDUALS WITH DISABILITIES
(ADA)
1. The authority for part 37 is revised to read as follows:
Authority: 42 U.S.C. 12101-12213; 49 U.S.C. 322.
2. Section 37.3 of part 37 is amended by adding the following
definition, placed in alphabetical order with the existing definitions,
to read as follows:
Sec. 37.3 Definitions.
* * * * *
Small operator means, in the context of over-the-road buses
(OTRBs), a private entity primarily in the business of transporting
people that is not a Class I motor carrier. To determine whether an
operator has sufficient average annual gross transportation operating
revenues to be a Class I motor carrier, its revenues are combined with
those of any other OTRB operator with which it is affiliated.
* * * * *
4. A new Subpart H, consisting of Secs. 37.181 through 37.215, is
added to part 37, to read as follows:
Subpart H--Over-the-road Buses (OTRBs)
Sec.
37.181 Applicability dates.
37.183 Purchase or lease of new OTRBs by operators of fixed-route
systems.
37.185 Fleet accessibility requirement for OTRB fixed-route systems
of large operators.
37.187 Interline service.
37.189 Service requirement for OTRB demand-responsive systems.
37.191 Special provision for small mixed-service operators.
37.193 Interim service requirements.
37.195 Purchase or lease of OTRBs by private entities not primarily
in the business of transporting people.
37.197 Remanufactured OTRBs.
37.199 Compensation for failure to provide required vehicles or
service.
37.201 Intermediate and rest stops.
37.203 Lift maintenance.
37.205 Additional passengers who use wheelchairs.
37.207 Discriminatory practices.
37.209 Training and other requirements.
37.211 Effect of NHTSA and FHWA safety rules.
37.213 Information collection requirements.
37.215 Review of requirements.
Appendix A to Subpart H of Part 37--Forms for Advance Notice Requests
and Provision of Equivalent Service
Subpart H--Over-the-Road Buses (OTRBs)
Sec. 37.181 Applicability dates.
This subpart applies to all private entities that operate OTRBs.
The requirements of the subpart begin to apply to large operators
beginning October 30, 2000 and to small operators beginning October 29,
2001.
Sec. 37.183 Purchase or lease of new OTRBs by operators of fixed-route
systems.
The following requirements apply to private entities that are
primarily in the business of transporting people, whose operations
affect commerce, and that operate a fixed-route system, with respect to
OTRBs delivered to them on or after the date on which this subpart
applies to them:
(a) Large operators. If a large entity operates a fixed-route
system, and purchases or leases a new OTRB for or in contemplation of
use in that system, it shall ensure that the vehicle is readily
accessible to and usable by individuals with disabilities, including
individuals who use wheelchairs.
(b) Small operators. If a small entity operates a fixed-route
system, and purchases or leases a new OTRB for or in contemplation of
use in that system, it must do one of the following two things:
(1) Ensure that the vehicle is readily accessible to and usable by
individuals with disabilities, including individuals who use
wheelchairs; or
(2) Ensure that equivalent service, as defined in Sec. 37.105, is
provided to individuals with disabilities, including individuals who
use wheelchairs. To meet this equivalent service standard, the service
provided by the operator must permit a wheelchair user to travel in his
or her own mobility aid.
Sec. 37.185 Fleet accessibility requirement for OTRB fixed-route
systems of large operators.
Each large operator subject to the requirements of Sec. 37.183
shall ensure that--
(a) By October 30, 2006 no less than 50 percent of the buses in its
fleet with which it provides fixed-route service are readily accessible
to and usable by individuals with disabilities, including individuals
who use wheelchairs.
(b) By October 29, 2012, 100 percent of the buses in its fleet with
which it provides fixed-route service are readily accessible to and
usable by individuals with disabilities, including individuals who use
wheelchairs.
(c) Request for time extension. An operator may apply to the
Secretary for a time extension of the fleet accessibility deadlines of
this section. If he or she grants the request, the Secretary sets a
specific date by which the operator must meet the fleet accessibility
requirement. In determining whether to grant such a request, the
Secretary considers the following factors:
(1) Whether the operator has purchased or leased, since October 30,
2000, enough new OTRBs to replace 50 percent of the OTRBs with which it
provides fixed-route service by October 30, 2006 or 100 percent of such
OTRBs by October 29, 2012;
(2) Whether the operator has purchased or leased, between October
28, 1998 and October 30, 2000, a number of new inaccessible OTRBs
significantly exceeding the number of buses it would normally obtain in
such a period;
(3) The compliance with all requirements of this part by the
operator
[[Page 51691]]
over the period between October 28, 1998 and the request for time
extension.
Sec. 37.187 Interline service.
(a) When the general public can purchase a ticket or make a
reservation with one operator for a fixed-route trip of two or more
stages in which another operator provides service, the first operator
must arrange for an accessible bus, or equivalent service, as
applicable, to be provided for each stage of the trip to a passenger
with a disability. The following examples illustrate the provisions of
this paragraph (a):
Example 1. By going to Operator X's ticket office or calling X
for a reservation, a passenger can buy or reserve a ticket from
Point A through to Point C, transferring at intermediate Point B to
a bus operated by Operator Y. Operator X is responsible for
communicating immediately with Operator Y to ensure that Y knows
that a passenger needing accessible transportation or equivalent
service, as applicable, is traveling from Point B to Point C. By
immediate communication, we mean that the ticket or reservation
agent for Operator X, by phone, fax, computer, or other
instantaneous means, contacts Operator Y the minute the reservation
or ticketing transaction with the passenger, as applicable, has been
completed. It is the responsibility of each carrier to know how to
contact carriers with which it interlines (e.g., Operator X must
know Operator Y's phone number).
Example 2. Operator X fails to provide the required information
in a timely manner to Operator Y. Operator X is responsible for
compensating the passenger for the consequent unavailability of an
accessible bus or equivalent service, as applicable, on the B-C leg
of the interline trip.
(b) Each operator retains the responsibility for providing the
transportation required by this subpart to the passenger for its
portion of an interline trip. The following examples illustrate the
provisions of this paragraph (b):
Example 1. In Example 1 to paragraph (a) of this section,
Operator X provides the required information to Operator Y in a
timely fashion. However, Operator Y fails to provide an accessible
bus or equivalent service to the passenger at Point B as the rules
require. Operator Y is responsible for compensating the passenger as
provided in Sec. 37. 199.
Example 2. Operator X provides the required information to
Operator Y in a timely fashion. However, the rules require Operator
Y to provide an accessible bus on 48 hours' advance notice (i.e., as
a matter of interim service under Sec. 37.193(a) or service by a
small mixed-service operator under Sec. 37.191), and the passenger
has purchased the ticket or made the reservation for the interline
trip only 8 hours before Operator Y's bus leaves from Point B to go
to Point C. In this situation, Operator Y is not responsible for
providing an accessible bus to the passenger at Point B, any more
than that it would be had the passenger directly contacted Operator
Y to travel from Point B to Point C.
(c) All fixed-route operators involved in interline service shall
ensure that they have the capacity to receive communications at all
times concerning interline service for passengers with disabilities.
The following examples illustrate the provisions of this paragraph (c):
Example 1. Operator Y's office is staffed only during normal
weekday business hours. Operator Y must have a means of receiving
communications from carriers with which it interlines (e.g.,
telephone answering machine, fax, computer) when no one is in the
office.
Example 2. Operator Y has the responsibility to monitor its
communications devices at reasonable intervals to ensure that it can
act promptly on the basis of messages received. If Operator Y
receives a message from Operator X on its answering machine on
Friday night, notifying Y of the need for an accessible bus on
Monday morning, it has the responsibility of making sure that the
accessible bus is there on Monday morning. Operator Y is not excused
from its obligation because no one checked the answering machine
over the weekend.
Sec. 37.189 Service requirement for OTRB demand-responsive systems.
(a) This section applies to private entities primarily in the
business of transporting people, whose operations affect commerce, and
that provide demand-responsive OTRB service. Except as needed to meet
the other requirements of this section, these entities are not required
to purchase or lease accessible buses in connection with providing
demand-responsive service.
(b) Demand-responsive operators shall ensure that, beginning one
year from the date on which the requirements of this subpart begin to
apply to the entity, any individual with a disability who requests
service in an accessible OTRB receives such service. This requirement
applies to both large and small operators.
(c) The operator may require up to 48 hours' advance notice to
provide this service.
(d) If the individual with a disability does not provide the
advance notice the operator requires under paragraph (a) of this
section, the operator shall nevertheless provide the service if it can
do so by making a reasonable effort.
(e) To meet this requirement, an operator is not required to
fundamentally alter its normal reservation policies or to displace
another passenger who has reserved a seat on the bus. The following
examples illustrate the provisions of this paragraph (e):
Example 1. A tour bus operator requires all passengers to
reserve space on the bus three months before the trip date. This
requirement applies to passengers with disabilities on the same
basis as other passengers. Consequently, an individual passenger who
is a wheelchair user would have to request an accessible bus at the
time he or she made his reservation, at least three months before
the trip date. If the individual passenger with a disability makes a
request for space on the trip and an accessible OTRB 48 hours before
the trip date, the operator could refuse the request because all
passengers were required to make reservations three months before
the trip date.
Example 2. A group makes a reservation to charter a bus for a
trip four weeks in advance. A week before the trip date, the group
discovers that someone who signed up for the trip is a wheelchair
user who needs an accessible bus, or someone who later buys a seat
in the block of seats the group has reserved needs an accessible
bus. A group representative or the passenger with a disability
informs the bus company of this need more than 48 hours before the
trip date. The bus company must provide an accessible bus.
Example 3. While the operator's normal deadline for reserving
space on a charter or tour trip has passed, a number of seats for a
trip are unfilled. The operator permits members of the public to
make late reservations for the unfilled seats. If a passenger with a
disability calls 48 hours before the trip is scheduled to leave and
requests a seat and the provision of an accessible OTRB, the
operator must meet this request, as long as it does not displace
another passenger with a reservation.
Example 4. A tour bus trip is nearly sold out three weeks in
advance of the trip date. A passenger with a disability calls 48
hours before the trip is scheduled to leave and requests a seat and
the provision of an accessible OTRB. The operator need not meet this
request if it will have the effect of displacing a passenger with an
existing reservation. If other passengers would not be displaced,
the operator must meet this request.
Sec. 37.191 Special provision for small mixed-service operators.
(a) For purposes of this section, a small mixed-service operator is
a small operator that provides both fixed-route and demand-responsive
service and does not use more than 25 percent of its buses for fixed-
route service.
(b) An operator meeting the criteria of paragraph (a) of this
section may conduct all its trips, including fixed-route trips, on an
advance-reservation basis as provided for demand-responsive trips in
Sec. 37.189. Such an operator is not required to comply with the
accessible bus acquisition/equivalent service obligations of
Sec. 37.183(b).
Sec. 37.193 Interim service requirements.
(a) Until 100 percent of the fleet of a large or small operator
uses to provide
[[Page 51692]]
fixed-route service is composed of accessible OTRBs, the operator shall
meet the following interim service requirements:
(1) Beginning one year from the date on which the requirements of
this subpart begin to apply to the operator, it shall ensure that any
individual with a disability that requests service in an accessible
OTRB receives such service.
(i) The operator may require up to 48 hours' advance notice to
provide this service.
(ii) If the individual with a disability does not provide the
advance notice the operator requires, the operator shall nevertheless
provide the service if it can do so by making a reasonable effort.
(iii) If the trip on which the person with a disability wishes to
travel is already provided by an accessible bus, the operator has met
this requirement.
(2) Before a date one year from the date on which this subpart
applies to the operator, an operator which is unable to provide the
service specified in paragraph (a) of this section shall comply with
the requirements of Sec. 37.169.
(3) Interim service under this paragraph (a) is not required to be
provided by a small operator who is providing equivalent service to its
fixed-route service as provided in Sec. 37.183(b)(2).
(b) Some small fixed-route operators may never have a fleet 100
percent of which consists of accessible buses (e.g., a small fixed-
route operator who exclusively or primarily purchases or leases used
buses). Such an operator must continue to comply with the requirements
of this section with respect to any service that is not provided
entirely with accessible buses.
(c) Before a date one year from the date on which this subpart
applies to an operator providing demand-responsive service, an operator
which is unable to provide the service described in Sec. 37.189 shall
comply with the requirements of Sec. 37.169.
Sec. 37.195 Purchase or lease of OTRBs by private entities not
primarily in the business of transporting people.
This section applies to all purchases or leases of new vehicles by
private entities which are not primarily engaged in the business of
transporting people, with respect to buses delivered to them on or
after the date on which this subpart begins to apply to them.
(a) Fixed-route systems. If the entity operates a fixed-route
system and purchases or leases an OTRB for or in contemplation of use
on the system, it shall meet the requirements of Sec. 37.183 (a) or
(b), as applicable.
(b) Demand-responsive systems. The requirements of Sec. 37.189
apply to demand-responsive systems operated by private entities not
primarily in the business of transporting people. If such an entity
operates a demand-responsive system, and purchases or leases an OTRB
for or in contemplation of use on the system, it is not required to
purchase or lease an accessible bus except as needed to meet the
requirements of Sec. 37.189.
Sec. 37.197 Remanufactured OTRBs.
(a) This section applies to any private entity operating OTRBs that
takes one of the following actions:
(1) On or after the date on which this subpart applies to the
entity, it remanufactures an OTRB so as to extend its useful life for
five years or more or makes a solicitation for such remanufacturing; or
(2) Purchases or leases an OTRB which has been remanufactured so as
to extend its useful life for five years or more, where the purchase or
lease occurs after the date on which this subpart applies to the entity
and during the period in which the useful life of the vehicle is
extended.
(b) In any situation in which this subpart requires an entity
purchasing or leasing a new OTRB to purchase or lease an accessible
OTRB, OTRBs acquired through the actions listed in paragraph (a) of
this section shall, to the maximum extent feasible, be readily
accessible to and usable by individuals with disabilities, including
individuals who use wheelchairs.
(c) For purposes of this section, it shall be considered feasible
to remanufacture an OTRB so as to be readily accessible to and usable
by individuals with disabilities, including individuals who use
wheelchairs, unless an engineering analysis demonstrates that including
accessibility features required by this part would have a significant
adverse effect on the structural integrity of the vehicle.
Sec. 37.199 Compensation for failure to provide required vehicles or
service.
(a) Operators shall pay compensation to passengers with
disabilities as provided in this section in the following situations:
(1) If a demand-responsive operator under Sec. 37.189 or a small
mixed-service operator under Sec. 37.191 fails to provide in a timely
manner an accessible OTRB to a passenger with a disability who has made
a timely request for such a bus;
(2) If a fixed-route operator providing interim service under
Sec. 37.193(a)(1) fails to provide in a timely manner an accessible
OTRB to a passenger with a disability who has made a timely request for
such a bus;
(3) If a small fixed-route operator who chooses to provide
equivalent service under Sec. 37.183(b)(2) fails to provide equivalent
service to a passenger;
(4) If required service is not provided to a passenger with a
disability because accessibility equipment does not function or
operator personnel do not perform essential tasks;
(5) If, for a trip involving an interline connection (see
Sec. 37.187), the operator with whom the passenger purchases the ticket
or makes a reservation for the trip fails to communicate immediately
with other operators providing a portion of the trip to inform them of
the need for an accessible bus or equivalent service, as applicable,
with the result that other operators do not provide the service
required by this subpart; or
(6) If an operator required to provide interim service under
Sec. 37.169, after the date on which this subpart begins to apply to
the operator, fails to provide this service.
(b) When one of the events in paragraph (a) of this section calling
for compensation occurs, the operator shall pay compensation regardless
of the reason for the failure to provide the required service. The only
exception to this requirement is a situation in which, for reasons
beyond the control of the operator, no transportation is provided to
any passenger.
(c) The amount of the compensation shall be the following:
(1) On the first occasion on which the operator fails to provide
the required service as provided in paragraph (a) of this section to
any passenger, $300;
(2) On the second such occasion, $400;
(3) On the third such occasion, $500;
(4) On the fourth such occasion, $600;
(5) On the fifth and subsequent such occasions, $700.
(d) The operator shall provide this compensation to the passenger
within seven working days of the date on which the operator failed to
provide the accessible OTRB or provide equivalent service, as
applicable.
(e) Payment of compensation under this section is not a defense to
legal action brought against the operator to enforce the Americans with
Disabilities Act or this part.
Sec. 37.201 Intemediate and rest stops.
(a) Whenever an OTRB makes an intermediate or rest stop, a
passenger with a disability, including an individual using a
wheelchair, shall be permitted to leave and return to the bus on the
same basis as other passengers.
[[Page 51693]]
The operator shall ensure that assistance is provided to passengers
with disabilities as needed to enable the passenger to get on and off
the bus at the stop (e.g., operate the lift and provide assistance with
securement; provide other boarding assistance if needed, as in the case
of a wheelchair user who has transferred to a vehicle seat because
other wheelchair users occupied all securement locations).
(b) If an OTRB operator owns, leases, or controls the facility at
which a rest or intermediate stop is made, or if an OTRB operator
contracts with the person who owns, leases, or controls such a facility
to provide rest stop services, the OTRB operator shall ensure the
facility complies fully with applicable requirements of the Americans
with Disabilities Act.
(c) If an OTRB equipped with an inaccessible restroom is making an
express run of three hours or more without a rest stop, and a passenger
with a disability who is unable to use the inaccessible restroom
requests an unscheduled rest stop, the operator shall make a good faith
effort to accommodate the request. The operator is not required to make
the stop. However, if the operator does not make the stop, the operator
shall explain to the passenger making the request the reason for its
decision not to do so.
Sec. 37.203 Lift maintenance.
(a) The entity shall establish a system of regular and frequent
maintenance checks of lifts sufficient to determine if they are
operative.
(b) The entity shall ensure that vehicle operators report to the
entity, by the most immediate means available, any failure of a lift to
operate in service.
(c) Except as provided in paragraph (d) of this section, when a
lift is discovered to be inoperative, the entity shall take the vehicle
out of service before the beginning of the vehicle's next trip and
ensure that the lift is repaired before the vehicle returns to service.
(d) If there is no other vehicle available to take the place of an
OTRB with an inoperable lift, such that taking the vehicle out of
service before its next trip will reduce the transportation service the
entity is able to provide, the entity may keep the vehicle in service
with an inoperable lift for no more than five days from the day on
which the lift is discovered to be inoperative.
Sec. 37.205 Additional passengers who use wheelchairs.
If a number of wheelchair users exceeding the number of securement
locations on the bus seek to travel on a trip, the operator shall
assign the securement locations on a first come-first served basis. The
operator shall offer boarding assistance and the opportunity to sit in
a vehicle seat to passengers who are not assigned a securement
location. If the passengers who are not assigned securement locations
are unable or unwilling to accept this offer, the operator is not
required to provide transportation to them on the bus.
Sec. 37.207 Discriminatory practices.
It shall be considered discrimination for any operator to--
(a) Deny transportation to passengers with disabilities, except as
provided in Sec. 37.5(h);
(b) Use or request the use of persons other than the operator's
employees (e.g., family members or traveling companions of a passenger
with a disability, medical or public safety personnel) for routine
boarding or other assistance to passengers with disabilities, unless
the passenger requests or consents to assistance from such persons;
(c) Require or request a passenger with a disability to reschedule
his or her trip, or travel at a time other than the time the passenger
has requested, in order to receive transportation as required by this
subpart;
(d) Fail to provide reservation services to passengers with
disabilities equivalent to those provided other passengers; or
(e) Fail or refuse to comply with any applicable provision of this
part.
Sec. 37.209 Training and other requirements.
OTRB operators shall comply with the requirements of Secs. 37.161,
37.165-37.167, and 37.173. For purposes of Sec. 37.173, ``training to
proficiency'' is deemed to include, as appropriate to the duties of
particular employees, training in proper operation and maintenance of
accessibility features and equipment, boarding assistance, securement
of mobility aids, sensitive and appropriate interaction with passengers
with disabilities, handling and storage of mobility devices, and
familiarity with the requirements of this subpart. OTRB operators shall
provide refresher training to personnel as needed to maintain
proficiency.
Sec. 37.211 Effect of NHTSA and FHWA safety rules.
OTRB operators are not required to take any action under this
subpart that would violate an applicable National Highway Traffic
Safety Administration or Federal Highway Administration safety rule.
Sec. 37.213 Information collection requirements.
(a) This paragraph (a) applies to demand-responsive operators under
Sec. 37.189 and fixed-route operators under Sec. 37.193(a)(1) that are
required to, and small mixed-service operators under Sec. 37.191 that
choose to, provide accessible OTRB service on 48 hours' advance notice.
(1) When the operator receives a request for accessible bus
service, the operator shall complete lines 1-8 of the Form A in
Appendix A to this subpart. The operator shall immediately provide a
copy of the form to the passenger.
(2) On the scheduled date of the trip, the operator shall complete
lines 9-11 of the form. In any case in which the requested accessible
bus was not provided, the operator shall immediately provide a copy of
the form to the passenger.
(3) The operator shall retain its copy of the completed form for
five years. The operator shall make these forms available to Department
of Transportation or Department of Justice officials at their request.
(4) Beginning October 29, 2001 for large operators, and October 28,
2002 for small operators, and on that date in each year thereafter,
each operator shall submit a summary of its forms to the Department of
Transportation. The summary shall state the number of requests for
accessible bus service, the number of times these requests were met,
and the number of times compensation was paid. It shall also include
the name, address, telephone number, and contact person name for the
operator.
(b) This paragraph (b) applies to small fixed-route operators who
choose to provide equivalent service to passengers with disabilities
under Sec. 37.183(b)(2).
(1) The operator shall complete Form B in Appendix A to this
subpart on every occasion on which a passenger with a disability needs
equivalent service in order to be provided transportation.
(2) The operator shall provide one copy of the form to the
passenger and retain another copy of the completed form for five years.
The operator shall make these forms available to Department of
Transportation or Department of Justice officials at their request.
(3) Beginning October 28, 2002, and on that date in each year
thereafter, each operator shall submit a summary of its forms to the
Department of Transportation. The summary shall state the number of
situations in which equivalent service was needed, the number of times
such service was
[[Page 51694]]
provided, and the number of times compensation was paid. It shall also
include the name, address, telephone number, and contact person name
for the operator.
(c) Beginning October 30, 2000 for large operators, and October 29,
2001 for small operators, and on that date in each year thereafter,
each fixed-route operator shall submit to the Department a report on
how many passengers with disabilities used the lift to board accessible
buses. For fixed-route operators, the report shall reflect separately
the data pertaining to 48-hour advance reservation service and other
service.
(d) Each operator shall submit to the Department, October 28, 1999
and each year thereafter on that date, a summary report listing the
number of new buses and used buses it has purchased or leased during
the preceding year, and how many of the buses in each category are
accessible. It shall also include the total number of buses in the
operator's fleet and the name, address, telephone number, and contact
person name for the operator.
(e) The information required to be submitted to the Department
shall be sent to the following address: Bureau of Transportation
Statistics, 400 7th Street, SW., Washington, DC 20590.
Sec. 37.215 Review of requirements.
(a) Beginning October 28, 2005, the Department will review the
requirements of Sec. 37.189 and their implementation. The Department
will complete this review by October 30, 2006.
(1) As part of this review, the Department will consider factors
including, but not necessarily limited to, the following:
(i) The percentage of accessible buses in the demand-responsive
fleets of large and small demand-responsive operators.
(ii) The success of small and large demand-responsive operators'
service at meeting the requests of passengers with disabilities for
accessible buses in a timely manner.
(iii) The ridership of small and large operators' demand-responsive
service by passengers with disabilities.
(iv) The volume of complaints by passengers with disabilities.
(v) Cost and service impacts of implementation of the requirements
of Sec. 37.189.
(2) The Department will make one of the following decisions on the
basis of the review:
(i) Retain Sec. 37.189 without change; or
(ii) Modify the requirements of Sec. 37.189 for large and/or small
demand-responsive operators.
(b) Beginning October 30, 2006, the Department will review the
requirements of Secs. 37.183, 37.185, 37.187, 37.191 and 37.193(a) and
their implementation. The Department will complete this review by
October 29, 2007.
(1) As part of this review, the Department will consider factors
including, but not necessarily limited to, the following:
(i) The percentage of accessible buses in the fixed-route fleets of
large and small fixed-route operators.
(ii) The success of small and large fixed-route operators' interim
or equivalent service at meeting the requests of passengers with
disabilities for accessible buses in a timely manner.
(iii) The ridership of small and large operators' fixed-route
service by passengers with disabilities.
(iv) The volume of complaints by passengers with disabilities.
(v) Cost and service impacts of implementation of the requirements
of these sections.
(2) The Department will make one of the following decisions on the
basis of the review:
(i) Retain Secs. 37.183, 37.185, 37.187, 37.191, 37.193(a) without
change; or
(ii) Modify the requirements of Secs. 37.183, 37.185, 37.187,
37.191, 37.193(a) for large and/or small fixed-route operators.
Appendix A to Subpart H of Part 37--Forms for Advance Notice
Requests and Provision of Equivalent Service
Form A--For Use by Providers of Advance Notice Service
1. Operator's name-----------------------------------------------------
2. Address-------------------------------------------------------------
----------------------------------------------------------------------
3. Phone number:-------------------------------------------------------
4. Passenger's name:---------------------------------------------------
5. Address:------------------------------------------------------------
----------------------------------------------------------------------
6. Phone number:-------------------------------------------------------
7. Scheduled date and time of trip:------------------------------------
8. Date and time of request:-------------------------------------------
9. Was accessible bus provided for trip? Yes____ no____
10. Was there a basis recognized by U.S. Department of
transportation regulations for not providing an accessible bus for
the trip? Yes____ no____
If yes, explain--------------------------------------------------------
----------------------------------------------------------------------
11. If the answers to items 9 and 10 were both no, attach
documentation that compensation required by department of
transportation regulations was paid.
Form B--For Use by Providers of Equivalent Service
1. Operator's name-----------------------------------------------------
2. Address-------------------------------------------------------------
----------------------------------------------------------------------
3. Phone number:-------------------------------------------------------
4. Passenger's name:---------------------------------------------------
5. Address:------------------------------------------------------------
----------------------------------------------------------------------
6. Phone number:-------------------------------------------------------
7. Date and time of trip:----------------------------------------------
8. Location of need for equivalent service:
----------------------------------------------------------------------
9. Was equivalent service provided for trip? Yes____ no____
10. If the answer to items 9 and 10 is no, attach documentation that
compensation required by Department of Transportation regulations
was paid.
[FR Doc. 98-25421 Filed 9-24-98; 2:15 pm]
BILLING CODE 4910-62-P
