Construction and Interpretation of Provisions of 49 CFR Part 37

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[Code of Federal Regulations]
[Title 49, Volume 1]
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Appendix D to Part 37--Construction and Interpretation of Provisions of 
                             49 CFR Part 37
    This appendix explains the Department's construction and 
interpretation of provisions of 49 CFR part 37. It is intended to be
used as definitive guidance concerning the meaning and implementation of
these provisions. The appendix is organized on a section-by-section
basis. Some sections of the rule are not discussed in the appendix,
because they are self-explanatory or we do not currently have
interpretive material to provide concerning them.
    The Department also provides guidance by other means, such as
manuals and letters. The Department intends to update this Appendix
periodically to include guidance, provided in response to inquiries
about specific situations, that is of general relevance or interest.
                      Amendments to 49 CFR Part 27
    Section 27.67(d) has been revised to reference the Access Board 
facility guidelines (found in appendix A to part 37) as well as the
Uniform Federal Accessibility Standard (UFAS). This change was made to
ensure consistency between requirements under section 504 and the ADA.
Several caveats relating to the application of UFAS (e.g., that spaces
not used by the public or likely to result in the employment of
individuals with disabilities would not have to meet the standards) have
been deleted. It is the Department's understanding that provisions of
the Access Board standards and part 37 make them unnecessary.
    The Department is aware that there is a transition period between
the publication of this rule and the effective date of many of its
provisions (e.g., concerning facilities and paratransit services) during
which section 504 remains the basic authority for accessibility
modifications. In this interval, the Department expects recipients'
compliance with section 504 to look forward to compliance with the ADA
provisions. That is, if a recipient is making a decision about the shape
of its paratransit service between the publication of this rule and
January 26, 1992, the decision should be in the direction of service
that will help to comply with post-January 1992 requirements. A
recipient that severely curtailed its present paratransit service in
October, and then asked for a three- or five-year phase-in of service
under its paratransit plan, would not be acting consistent with this
policy.
    Likewise, the Department would view with disfavor any attempt by a
recipient to accelerate the beginning of the construction, installation
or alteration of a facility to before January 26, 1992, to ``beat the
clock'' and avoid the application of this rule's facility standards. The
Department would be very reluctant to approve grants, contracts,
exemption requests etc., that appear to have this effect. The purpose of
the Department's administration of section 504 is to ensure compliance
with the national policy stated in the ADA, not to permit avoidance of
it.
                           Subpart A--General
                        Section 37.3 Definitions
    The definition of ``commuter authority'' includes a list of commuter 
rail operators drawn from a statutory reference in the
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ADA. It should be noted that this list is not exhaustive. Other commuter 
rail operators (e.g., in Chicago or San Francisco) would also be
encompassed by this definition.
    The definition of ``commuter bus service'' is important because the
ADA does not require complementary paratransit to be provided with
respect to commuter bus service operated by public entities. The
rationale that may be inferred for the statutory exemption for this kind
of service concerns its typical characteristics (e.g., no attempt to
comprehensively cover a service area, limited route structure, limited
origins and destinations, interface with another mode of transportation,
limited purposes of travel). These characteristics can be found in some
transportation systems other than bus systems oriented toward work
trips. For example, bus service that is used as a dedicated connecter to
commuter or intercity rail service, certain airport shuttles, and
university bus systems share many or all of these characteristics. As
explained further in the discussion of subpart B, the Department has
determined that it is appropriate to cover these services with the
requirements applicable to commuter bus systems.
    The definitions of ``designated public transportation'' and
``specified public transportation'' exclude transportation by aircraft.
Persons interested in matters concerning access to air travel for
individuals with disabilities should refer to 14 CFR part 382, the
Department's regulation implementing the Air Carrier Access Act. Since
the facility requirements of this part refer to facilities involved in
the provision of designated or specified public transportation, airport
facilities are not covered by this part. DOJ makes clear that public and
private airport facilities are covered under its title II and title III
regulations, respectively.
    The examples given in the definition of ``facility'' all relate to
ground transportation. We would point out that, since transportation by
passenger vessels is covered by this rule and by DOJ rules, such vessel-
related facilities as docks, wharfs, vessel terminals, etc. fall under
this definition. It is intended that specific requirements for vessels
and related facilities will be set forth in future rulemaking.
    The definitions of ``fixed route system'' and ``demand responsive
system'' derive directly from the ADA's definitions of these terms. Some
systems, like a typical city bus system or a dial-a-ride van system, fit
clearly into one category or the other. Other systems may not so clearly
fall into one of the categories. Nevertheless, because how a system is
categorized has consequences for the requirements it must meet, entities
must determine, on a case-by-case basis, into which category their
systems fall.
    In making this determination, one of the key factors to be
considered is whether the individual, in order to use the service, must
request the service, typically by making a call.
    With fixed route service, no action by the individual is needed to
initiate public transportation. If an individual is at a bus stop at the
time the bus is scheduled to appear, then that individual will be able
to access the transportation system. With demand-reponsive service, an
additional step must be taken by the individual before he or she can
ride the bus, i.e., the individual must make a telephone call.

(S. Rept. 101-116 at 54).
    Other factors, such as the presence or absence of published 
schedules, or the variation of vehicle intervals in anticipation of
differences in usage, are less important in making the distinction
between the two types of service. If a service is provided along a given
route, and a vehicle will arrive at certain times regardless of whether
a passenger actively requests the vehicle, the service in most cases
should be regarded as fixed route rather than demand responsive.
    At the same time, the fact that there is an interaction between a
passenger and transportation service does not necessarily make the
service demand responsive. For many types of service (e.g., intercity
bus, intercity rail) which are clearly fixed route, a passenger has to
interact with an agent to buy a ticket. Some services (e.g., certain
commuter bus or commuter rail operations) may use flag stops, in which a
vehicle along the route does not stop unless a passenger flags the
vehicle down. A traveler staying at a hotel usually makes a room
reservation before hopping on the hotel shuttle. This kind of
interaction does not make an otherwise fixed route service demand
responsive.
    On the other hand, we would regard a system that permits user-
initiated deviations from routes or schedules as demand-responsive. For
example, if a rural public transit system (e.g., a section 18 recipient)
has a few fixed routes, the fixed route portion of its system would be
subject to the requirements of subpart F for complementary paratransit
service. If the entity changed its system so that it operated as a
route-deviation system, we would regard it as a demand responsive
system. Such a system would not be subject to complementary paratransit
requirements.
    The definition of ``individual with a disability'' excludes someone
who is currently engaging in the illegal use of drugs, when a covered
entity is acting on the basis of such use. This concept is more
important in employment and public accommodations contexts than it is in
transportation, and is discussed at greater length in the DOJ and EEOC
rules. Essentially, the definition says that, although drug addiction
(i.e., the status or a diagnosis of being a drug abuser) is
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a disability, no one is regarded as being an individual with a 
disability on the basis of current illegal drug use.
    Moreover, even if an individual has a disability, a covered entity
can take action against the individual if that individual is currently
engaging in illegal drug use. For example, if a person with a mobility
or vision impairment is ADA paratransit eligible, but is caught
possessing or using cocaine or marijuana on a paratransit vehicle, the
transit provider can deny the individual further eligibility. If the
individual has successfully undergone rehabilitation or is no longer
using drugs, as explained in the preamble to the DOJ rules, the transit
provider could not continue to deny eligibility on the basis that the
individual was a former drug user or still was diagnosed as a person
with a substance abuse problem.
    We defined ``paratransit'' in order to note its specialized usage in
the rule. Part 37 uses this term to refer to the complementary
paratransit service comparable to public fixed route systems which must
be provided. Typically, paratransit is provided in a demand responsive
mode. Obviously, the rule refers to a wide variety of demand responsive
services that are not ``paratransit,'' in this specialized sense.
    The ADA's definition of ``over-the-road bus'' may also be somewhat
narrower than the common understanding of the term. The ADA definition
focuses on a bus with an elevated passenger deck over a baggage
compartment (i.e., a ``Greyhound-type'' bus). Other types of buses
commonly referred to as ``over-the-road buses,'' which are sometimes
used for commuter bus or other service, do not come within this
definition. Only buses that do come within the definition are subject to
the over-the-road bus exception to accessibility requirements in Title
III of the ADA.
    For terminological clarity, we want to point out that two different
words are used in ADA regulations to refer to devices on which
individuals with hearing impairments communicate over telephone lines.
DOJ uses the more traditional term ``telecommunications device for the
deaf'' (TDD). The Access Board uses a newer term, ``text telephone.''
The DOT rule uses the terms interchangably.
    The definition of ``transit facility'' applies only with reference
to the TDD requirement of appendix A to this Part. The point of the
definition is to exempt from TDD requirements open structures, like bus
shelters, or facilities which are not used primarily as transportation
stops or terminals. For example, a drug store in a small town may sell
intercity bus tickets, and people waiting for the bus may even wait for
the bus inside the store. But the drug store's raison d'etre is not to
be a bus station. Its transportation function is only incidental.
Consequently, its obligations with respect to TDDs would be those
required of a place of public accommodation by DOJ rules.
    A ``used vehicle'' means a vehicle which has prior use; prior, that
is, to its acquisition by its present owner or lessee. The definition is
not relevant to existing vehicles in one's own fleet, which were
obtained before the ADA vehicle accessibility requirements took effect.
    A ``vanpool'' is a voluntary commuter ridesharing arrangement using
a van with a seating capacity of more than seven persons, including the
driver. Carpools are not included in the definition. There are some
systems using larger vehicles (e.g., buses) that operate, in effect, as
vanpools. This definition encompasses such systems. Vanpools are used
for daily work trips, between commuters' homes (or collection points
near them) and work sites (or drop points near them). Drivers are
themselves commuters who are either volunteers who receive no
compensation for their efforts or persons who are reimbursed by other
riders for the vehicle, operating, and driving costs.
    The definition of ``wheelchair'' includes a wide variety of mobility
devices. This inclusiveness is consistent with the legislative history
of the ADA (See S. Rept. 101-116 at 48). While some mobility devices may
not look like many persons' traditional idea of a wheel chair, three and
four wheeled devices, of many varied designs, are used by individuals
with disabilities and must be transported. The definition of ``common
wheelchair,'' developed by the Access Board, is intended to help transit
providers determine which wheelchairs they have to carry. The definition
involves an ``envelope'' relating to the Access Board requirements for
vehicle lifts.
    A lift conforming to Access Board requirements is
30"x48" and capable of lifting a wheelchair/occupant
combination of up to 600 pounds. Consequently, a common wheelchair is
one that fits these size and weight dimensions. Devices used by
individuals with disabilities that do not fit this envelope (e.g., may
``gurneys'') do not have to be carried.
                     Section 37.5 Nondiscrimination
    This section states the general nondiscrimination obligation for 
entities providing transportation service. It should be noted that
virtually all public and private entities covered by this regulation are
also covered by DOJ regulations, which have more detailed statements of
general nondiscrimination obligations.
    Under the ADA, an entity may not consign an individual with
disabilities to a separate, ``segregated,'' service for such persons, if
the individual can in fact use the service for the general public. This
is true even if the individual takes longer, or has more difficulty,
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than other persons in using the service for the general public.
    One instance in which this principal applies concerns the use of
designated priority seats (e.g., the so-called ``elderly and
handicapped'' seats near the entrances to buses). A person with a
disability (e.g., a visual impairment) may choose to take advantage of
this accommodation or not. If not, it is contrary to rule for the entity
to insist that the individual must sit in the priority seats.
    The prohibition on special charges applies to charges for service to
individuals with disabilities that are higher than charges for the same
or comparable services to other persons. For example, if a shuttle
service charges $20.00 for a ride from a given location to the airport
for most people, it could not charge $40.00 because the passenger had a
disability or needed to use the shuttle service's lift-equipped van.
Higher mileage charges for using an accessible vehicle would likewise be
inconsistent with the rule. So would charging extra to carry a service
animal accompanying an individual with a disability.
    If a taxi company charges $1.00 to stow luggage in the trunk, it
cannot charge $2.00 to stow a folding wheelchair there. This provision
does not mean, however, that a transportation provider cannot charge
nondiscriminatory fees to passengers with disabilities. The taxi company
in the above example can charge a passenger $1.00 to stow a wheelchair
in the trunk; it is not required to waive the charge. This section does
not prohibit the fares for paratransit service which transit providers
are allowed to charge under Sec. 37.131(d).
    A requirement for an attendant is inconsistent with the general
nondiscrimination principle that prohibits policies that unnecessarily
impose requirements on individuals with disabilities that are not
imposed on others. Consequently, such requirements are prohibited. An
entity is not required to provide attendant services (e.g., assistance
in toileting, feeding, dressing), etc.
    This provision must also be considered in light of the fact that an
entity may refuse service to someone who engages in violent, seriously
disruptive, or illegal conduct. If an entity may legitimately refuse
service to someone, it may condition service to him on actions that
would mitigate the problem. The entity could require an attendant as a
condition of providing service it otherwise had the right to refuse.
    The rule also points out that involuntary conduct related to a
disability that may offend or annoy other persons, but which does not
pose a direct treat, is not a basis for refusal of transportation. For
example, some persons with Tourette's syndrome may make involuntary
profane exclamations. These may be very annoying or offensive to others,
but would not be a ground for denial of service. Nor would it be
consistent with the nondiscrimination requirements of this part to deny
service based on fear or misinformation about the disability. For
example, a transit provider could not deny service to a person with HIV
disease because its personnel or other passengers are afraid of being
near people with that condition.
    This section also prohibits denials of service or the placing on
services of conditions inconsistent with this part on individuals with
disabilities because of insurance company policies or requirements. If
an insurance company told a transit provider that it would withdraw
coverage, or raise rates, unless a transit provider refused to carry
persons with disabilities, or unless the provider refused to carry
three-wheeled scooters, this would not excuse the provider from
providing the service as mandate by this part. This is not a regulatory
requirement on insurance companies, but simply says that covered
entities must comply with this part, even in the face of difficulties
with their insurance companies.
             Section 37.7 Standards for Accessible Vehicles
    This section makes clear that, in order to meet accessibility 
requirements of this rule, vehicles must comply with Access Board
standards, incorporated in DOT rules as 49 CFR part 38. Paragraph (b) of
Sec. 37.7 spells out a procedure by which an entity (public or private)
can deviate from provisions of part 38 with respect to vehicles. The
entity can make a case to the Administrator that it is unable to comply
with a particular portion of part 38, as written, for specified reasons,
and that it is providing comparable compliance by some alternative
method. The entity would have to describe how its alternative mode of
compliance would meet or exceed the level of access to or usability of
the vehicle that compliance with part 38 would otherwise provide.
    It should be noted that equivalent facilitation does not provide a
means to get a waiver of accessibility requirements. Rather, it is a way
in which comparable (not a lesser degree of) accessibility can be
provided by other means. The entity must consult with the public through
some means of public participation in devising its alternative form of
compliance, and the public input must be reflected in the submission to
the Administrator (or the Federal Railroad Administrator in appropriate
cases, such as a request concerning Amtrak). The Administrator will make
a case-by-case decision about whether compliance with part 38 was
achievable and, if not, whether the proffered alternative complies with
the equivalent facilitation standard. DOT intends to consult with the
Access Board in making these determinations.
    This equivalent facilitation provision can apply to buses or other
motor vehicles as
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well as to rail cars and vehicles. An example of what could be an 
equivalent facilitation would concern rail cars which would leave too
wide a horizontal gap between the door and the platform. If the operator
used a combination of bridgeplates and personnel to bridge the gap, it
might be regarded as an equivalent facilitation in appropriate
circumstances.
    Section 37.7(c) clarifies which specifications must be complied with
for over-the-road buses purchased by public entities (under subpart D of
part 37) or private entities standing in the shoes of the public entity
(as described in Sec. 37.23 of part 37). This section is necessary to
make clear that over-the-road coaches must be accessible, when they are
purchased by or in furtherance of a contract with a public entity. While
the October 4, 1990 rule specified that over-the-road coaches must be
accessible under these circumstances, we had not previously specified
what constitutes accessibility.
    Accordingly, this paragraph specifies that an over-the-road bus must
have a lift which meets the performance requirements of a regular bus
lift (see Sec. 38.23) and must meet the interim accessibility features
specified for all over-the-road buses in part 3, subpart G.
          Section 37.9 Standards for Transportation Facilities
    This section makes clear that, in order to meet accessibility 
requirements of this rule, vehicles must comply with appendix A to part
37, which incorporates the Access Board facility guidelines.
    Paragraph (b) of Sec. 37.9 provides that, under certain
circumstances, existing accessibility modifications to key station
facilities do not need to be modified further in order to conform to
appendix A. This is true even if the standards under which the facility
was modified differ from the Access Board guidelines or provide a lesser
standard of accessibility.
    To qualify for this ``grandfathering,'' alterations must have been
before January 26, 1992. As in other facility sections of the rule, an
alteration is deemed to begin with the issuance of a notice to proceed
or work order. The existing modifications must conform to ANSI A-117.1,
Specifications for Making Buildings and Facilities Accessible to and
Usable by the Physically Handicapped 1980, or the Uniform Federal
Accessibility Standard. (UFAS).
    For example, if an entity used a Federal grant or loan or money to
make changes to a building, it would already have had to comply with the
Uniform Federal Accessibility Standards. Likewise, if a private entity,
acting without any Federal money in the project, may have complied with
the ANSI A117.1 standard. So long as the work was done in conformity
with the standard that was in effect when the work was done, the
alteration will be considered accessible.
    However, because one modification was made to a facility under one
of these standards, the entity still has a responsibility to make other
modifications needed to comply with applicable accessibility
requirements. For example, if an entity has made some modifications to a
key station according to one of these older standards, but the
modifications do not make the key station entirely accessible as this
rule requires, then additional modifications would have to be made
according to the standards of appendix A. Suppose this entity has put an
elevator into the station to make it accessible to individuals who use
wheelchairs. If the elevator does not fully meet appendix A standards,
but met the applicable ANSI standard when it was installed, it would not
need further modifications now. But if it had not already done so, the
entity would have to install a tactile strip along the platform edge in
order to make the key station fully accessible as provided in this rule.
The tactile strip would have to meet appendix A requirements.
    The rule specifically provides that ``grandfathering'' applies only
to alterations of individual elements and spaces and only to the extent
that provisions covering those elements or spaces are found in UFAS or
AHSI A117.1. For example, alterations to the telephones in a key station
may have been carried out in order to lower them to meet the
requirements of UFAS, but telecommunications devices for the deaf (TDDs)
were not installed. (Neither UFAS nor the ANSI standard include
requirements concerning TDDs). However, because appendix A does contain
TDD requirements, the key station must now be altered in accordance with
the standards for TDDs. Similarly, earlier alteration of an entire
station in accordance with UFAS or the ANSI standard would not relieve
an entity from compliance with any applicable provision concerning the
gap between the platform between the platform and the vehicle in a key
station, because neither of these two standards addresses the interface
between vehicle and platform.
    New paragraph (c) of this section clarifies a provision of the
Access Board's standards concerning the construction of bus stop pads at
bus stops. The final Access Board standard (found at section 10.2.1(1)
of appendix A to part 37) has been rewritten slightly to clear up
confusion about the perceived necessary construction of a bus stop pad.
Section 10.2.1(1) does not require that anyone build a bus stop pad; it
does specify what a bus stop pad must look like, if it is constructed.
The further clarifying language in Sec. 37.9(c) explains that public
entities must exert control over the construction of bus stop pads if
they have the ability to do so. The Access Board, as well as DOT,
recognize
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that most physical improvements related to bus stops are out of the 
control of the transit provider. Paragraph (c) of Sec. 37.9 merely
notes that where a transit provider does have control over the
construction, it must exercise that control to ensure that the pad meets
these specifications.
    One further clarification concerning the implication of this
provision deals with a bus loading island at which buses pull up on both
sides of the island. It would be possible to read the bus pad
specification to require the island to be a minimum of 84 inches wide
(two widths of a bus stop pad), so that a lift could be deployed from
buses on both sides of the island at the same time. A double-wide bus
pad, however, is likely to exceed available space in most instances.
    Where there is space, of course, building a double-wide pad is one
acceptable option under this rule. However, the combination of a pad of
normal width and standard operational practices may also suffice. (Such
practices could be offered as an equivalent facilitation.) For example,
buses on either side of the island could stop at staggered locations
(i.e., the bus on the left side could stop several feet ahead of the bus
on the right side), so that even when buses were on both sides of the
island at once, their lifts could be deployed without conflict. Where it
is possible, building the pad a little longer than normal size could
facilitate such an approach. In a situation where staggered stop areas
are not feasible, an operational practice of having one bus wait until
the other's lift cycle had been completed could do the job. Finally, the
specification does not require that a pad be built at all. If there is
nothing that can be done to permit lift deployment on both sides of an
island, the buses can stop on the street, or some other location, so
long as the lift is deployable.
    Like Sec. 37.7, this section contains a provision allowing an
entity to request approval for providing accessibility through an
equivalent facilitation.
                Section 37.11 Administrative Enforcement
    This section spells out administrative means of enforcing the 
requirements of the ADA. Recipients of Federal financial assistance from
DOT (whether public or private entities) are subject to DOT's section
504 enforcement procedures. The existing procedures, including
administrative complaints to the DOT Office of Civil Rights,
investigation, attempts at conciliation, and final resort to proceedings
to cut off funds to a noncomplying recipient, will continue to be used.
    In considering enforcement matters, the Department is guided by a
policy that emphasizes compliance. The aim of enforcement action, as we
see it, is to make sure that entities meet their obligations, not to
impose sanctions for their own sake. The Department's enforcement
priority is on failures to comply with basic requirements and ``pattern
or practice'' kinds of problems, rather than on isolated operational
errors.
    Under the DOJ rules implementing title II of the ADA (28 CFR part
35), DOT is a ``designated agency'' for enforcement of complaints
relating to transportation programs of public entities, even if they do
not receive Federal financial assistance. When it receives such a
complaint, the Department will investigate the complaint, attempt
conciliation and, if conciliation is not possible, take action under
section 504 and/or refer the matter to the DOJ for possible further
action.
    Title III of the ADA does not give DOT any administrative
enforcement authority with respect to private entities whose
transportation services are subject to part 37. In its title III rule
(28 CFR part 36), DOJ assumes enforcement responsibility for all title
III matters. If the Department of Transportation receives complaints of
violations of part 37 by private entities, it will refer the matters to
the DOJ.
    It should be pointed out that the ADA includes other enforcement
options. Individuals have a private right of action against entities who
violate the ADA and its implementing regulations. The DOJ can take
violators to court. These approaches are not mutually exclusive with the
administrative enforcement mechanisms described in this section. An
aggrieved individual can complain to DOT about an alleged transportation
violation and go to court at the same time. Use of administrative
enforcement procedures is not, under titles II and III, an
administrative remedy that individuals must exhaust before taking legal
action.
    We also would point out that the ADA does not assert any blanket
preemptive authority over state or local nondiscrimination laws and
enforcement mechanisms. While requirements of the ADA and this
regulation would preempt conflicting state or local provisions (e.g., a
building code or zoning ordinance that prevents compliance with appendix
A or other facility accessibility requirements, a provision of local law
that said bus drivers could not leave their seats to help secure
wheelchair users), the ADA and this rule do not prohibit states and
localities from legislating in areas relating to disability. For
example, if a state law requires a higher degree of service than the
ADA, that requirement could still be enforced. Also, states and
localities may continue to enforce their own parallel requirements. For
example, it would be a violation of this rule for a taxi driver to
refuse to pick up a person based on that person's disability. Such a
refusal may also be a violation of a county's taxi rules, subjecting the
violator to a fine or suspension of operating privileges. Both ADA and
local remedies could proceed in such a case.
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    Labor-management agreements cannot stand in conflict with the 
requirements of the ADA and this rule. For example, if a labor-
management agreement provides that vehicle drivers are not required to
provide assistance to persons with disabilities in a situation in which
this rule requires such assistance, then the assistance must be provided
notwithstanding the agreement. Labor and management do not have the
authority to agree to violate requirements of Federal law.
  Section 37.13 Effective Date for Certain Vehicle Lift Specifications.
    This section contains an explicit statement of the effective date 
for vehicle lift platform specifications. The Department has decided to
apply the new part 38 lift platform specifications to solicitations
after January 25, 1992. As in the October 4, 1990, rule implementing the
acquisition requirements; the date of a solicitation is deemed to be the
closing date for the submission of bids or offers in a procurement.
                        Subpart B--Applicability
                  Section 37.21 Applicability--General
    This section emphasizes the broad applicability of part 37. Unlike 
section 504, the ADA and its implementing rules apply to entities
whether or not they receive Federal financial assistance. They apply to
private and public entities alike. For entities which do receive Federal
funds, compliance with the ADA and part 37 is a condition of compliance
with section 504 and 49 CFR part 27, DOT's section 504 rule.
    Virtually all entities covered by this rule also are covered by DOJ
rules, either under 28 CFR part 36 as state and local program providers
or under 28 CFR part 35 as operators of places of public accommodation.
Both sets of rules apply; one does not override the other. The DOT rules
apply only to the entity's transportation facilities, vehicles, or
services; the DOJ rules may cover the entity's activities more broadly.
For example, if a public entity operates a transit system and a zoo,
DOT's coverage would stop at the transit system's edge, while DOJ's rule
would cover the zoo as well.
    DOT and DOJ have coordinated their rules, and the rules have been
drafted to be consistent with one another. Should, in the context of
some future situation, there be an apparent inconsistency between the
two rules, the DOT rule would control within the sphere of
transportation services, facilities and vehicles.
                  Section 37.23 Service Under Contract
    This section requires private entities to ``stand in the shoes'' of 
public entities with whom they contract to provide transportation
services. It ensures that, while a public entity may contract out its
service, it may not contract away its ADA responsibilities. The
requirement applies primarily to vehicle acquisition requirements and to
service provision requirements.
    If a public entity wishes to acquire vehicles for use on a commuter
route, for example, it must acquire accessible vehicles. It may acquire
accessible over-the-road buses, it may acquire accessible full-size
transit buses, it may acquire accessible smaller buses, or it may
acquire accessible vans. It does not matter what kind of vehicles it
acquires, so long as they are accessible. On the other hand, if the
public entity wants to use inaccessible buses in its existing fleet for
the commuter service, it may do so. All replacement vehicles acquired in
the future must, of course, be accessible.
    Under this provision, a private entity which contracts to provide
this commuter service stands in the shoes of the public entity and is
subject to precisely the same requirements (it is not required to do
more than the public entity). If the private entity acquires vehicles
used to provide the service, the vehicles must be accessible. If it
cannot, or chooses not to, acquire an accessible vehicle of one type, it
can acquire an accessible vehicle of another type. Like the public
entity, it can provide the service with inaccessible vehicles in its
existing fleet.
    The import of the provision is that it requires a private entity
contracting to provide transportation service to a public entity to
follow the rules applicable to the public entity. For the time being, a
private entity operating in its own right can purchase a new over-the-
road bus inaccessible to individuals who use wheelchairs. When that
private entity operates service under contract to the public entity,
however, it is just as obligated as the public entity itself to purchase
an accessible bus for use in that service, whether or not it is an over-
the-road bus.
    The ``stand in the shoes'' requirement applies not only to vehicles
acquired by private entities explicitly under terms of an executed
contract to provide service to a public entity, but also to vehicles
acquired ``in contemplation of use'' for service under such a contract.
This language is included to ensure good faith compliance with
accessibility requirements for vehicles acquired before the execution of
a contract. Whether a particular acquisition is in contemplation of use
on a contract will be determined on a case-by-case basis. However,
acquiring a vehicle a short time before a contract is executed and then
using it for the contracted service is an indication that the vehicle
was acquired in contemplation of use on the contract, as is acquiring a
vehicle obstensibly for other service provided by the entity and then
regularly rotating it into service under the contract.
[[Page 555]]
    The ``stand in the shoes'' requirement is applicable only to the 
vehicles and service (public entity service requirements, like Sec.
37.163, apply to a private entity in these situations) provided under
contract to a public entity. Public entity requirements clearly do not
apply to all phases of a private entity's operations, just because it
has a contract with a public entity. For example, a private bus company,
if purchasing buses for service under contract to a public entity, must
purchase accessible buses. The same company, to the extent permitted by
the private entity provisions of this part, may purchase inaccessible
vehicles for its tour bus operations.
    The Department also notes that the ``stands in the shoes''
requirement may differ depending on the kind of service involved. The
public entity's ``shoes'' are shaped differently, for example, depending
on whether the public entity is providing fixed route or demand
responsive service to the general public. In the case of demand
responsive service, a public entity is not required to buy an accessible
vehicle if its demand responsive system, when viewed in its entirety,
provides service to individuals with disabilities equivalent to its
service to other persons. A private contractor providing a portion of
this paratransit service would not necessarily have to acquire an
accessible vehicle if this equivalency test is being met by the system
as a whole. Similarly, a public entity can, after going through a ``good
faith efforts'' search, acquire inaccessible buses. A private entity
under contract to the public can do the same. ``Stand in the shoes'' may
also mean that, under some circumstances, a private contractor need not
acquire accessible vehicles. If a private company contracts with a
public school district to provide school bus service, it is covered, for
that purpose, by the exemption for public school transportation.
    In addition, the requirement that a private entity play by the rules
applicable to a public entity can apply in situations involving an
``arrangement or other relationship'' with a public entity other than
the traditional contract for service. For example, a private utility
company that operates what is, in essence, a regular fixed route public
transportation system for a city, and which receives section 3 or 9
funds from FTA via an agreement with a state or local government agency,
would fall under the provisions of this section. The provider would have
to comply with the vehicle acquisition, paratransit, and service
requirements that would apply to the public entity through which it
receives the FTA funds, if that public entity operated the system
itself. The Department would not, however, construe this section to
apply to situations in which the degree of FTA funding and state and
local agency involvement is considerably less, or in which the system of
transportation involved is not a de facto surrogate for a traditional
public entity fixed route transit system serving a city (e.g., a private
non-profit social service agency which receives FTA section 16(b)(2)
funds to purchase a vehicle).
    This section also requires that a public entity not diminish the
percentage of accessible vehicles in its fleet through contracting. For
example, suppose a public entity has 100 buses in its fleet, of which 20
are accessible, meaning that 20 percent of its fleet is accessible. The
entity decides to add a fixed route, for which a contractor is engaged.
The contractor is supplying ten of its existing inaccessible buses for
the fixed route. To maintain the 20 percent accessibility ratio, there
would have to be 22 accessible buses out of the 110 buses now in
operation in carrying out the public entity's service. The public entity
could maintain its 20 percent level of accessibility through any one or
more of a number of means, such as having the contractor to provide two
accessible buses, retrofitting two if its own existing buses, or
accelerating replacement of two of its own inaccessible buses with
accessible buses.
    This rule applies the ``stand in the shoes'' principle to
transactions wholly among private entities as well. For example, suppose
a taxi company (a private entity primarily engaged in the business of
transporting people) contracts with a hotel to provide airport shuttle
van service. With respect to that service, the taxi company would be
subject to the requirements for private entities not primarily in the
business of transporting people, since it would be ``standing in the
shoes'' of the hotel for that purpose.
             Section 37.25 University Transportation Systems
    Private university-operated transportation systems are subject to 
the requirements of this rule for private entities not primarily engaged
in the business of transporting people. With one important exception,
public university-operated transportation systems are subject to the
requirements of the rule for public entities. The nature of the systems
involved--demand-responsive or fixed route--determines the precise
requirements involved.
    For public university fixed route systems, public entity
requirements apply. In the case of fixed route systems, the requirements
for commuter bus service would govern. This has the effect of requiring
the acquisition of accessible vehicles and compliance with most other
provisions of the rule, but does not require the provision of
complementary paratransit or submitting a paratransit plan. As a result,
private and public universities will have very similar obligations under
the rule.
[[Page 556]]
  Section 37.27 Transportation for Elementary and Secondary Education 
                                 Systems
    This section restates the statutory exemption from public entity 
requirements given to public school transportation. This extension also
applies to transportation of pre-school children to Head Start or
special education programs which receive Federal assistance. It also
applies to arrangements permitting pre-school children of school bus
drivers to ride a school bus or allowing teenage mothers to be
transported to day care facilities at a school or along a school bus
route so that their mothers may continue to attend school (See H. Rept.
101-485, pt. 1 at 27). The situation for private schools is more
complex. According to the provision, a private elementary or secondary
school's transportation system is exempt from coverage under this rule
if all three of the following conditions are met: (1) The school
receives Federal financial assistance; (2) the school is subject to
section 504; and (3) the school's transportation system provides
transportation services to individuals with disabilities, including
wheelchair users, equivalent to those provided to individuals without
disabilities. The test of equivalency is the same as that for other
private entities, and is described under Sec. 37.105. If the school
does not meet all these criteria, then it is subject to the requirements
of Part 37 for private entities not primarily engaged in the business of
transporting people.
    The Department notes that, given the constitutional law on church-
state separation, it is likely that church-affiliated private schools do
not receive Federal financial assistance. To the extent that these
schools' transportation systems are operated by religious entities or
entities controlled by religious organizations, they are not subject to
the ADA at all, so this section does not apply to them.
             Section 37.29 Private Providers of Taxi Service
    This section first recites that providers of taxi service are 
private entities primarily engaged in the business of transporting
people which provide demand responsive service. For purposes of this
section, other transportation services that involve calling for a car
and a driver to take one places (e.g., limousine services, of the kind
that provide luxury cars and chauffeurs for senior proms and analogous
adult events) are regarded as taxi services.
    Under the ADA, no private entity is required to purchase an
accessible automobile. If a taxi company purchases a larger vehicle,
like a van, it is subject to the same rules as any other private entity
primarily engaged in the business of transporting people which operates
a demand responsive service. That is, unless it is already providing
equivalent service, any van it acquires must be accessible. Equivalent
service is measured according to the criteria of Sec. 37.105. Taxi
companies are not required to acquire vehicles other than automobiles to
add accessible vehicles to their fleets.
    Taxi companies are subject to nondiscrimination obligations. These
obligations mean, first, that a taxi service may not deny a ride to an
individual with a disability who is capable of using the taxi vehicles.
It would be discrimination to pass up a passenger because he or she was
blind or used a wheelchair, if the wheelchair was one that could be
stowed in the cab and the passenger could transfer to a vehicle seat.
Nor could a taxi company insist that a wheelchair user wait for a lift-
equipped van if the person could use an automobile.
    It would be discrimination for a driver to refuse to assist with
stowing a wheelchair in the trunk (since taxi drivers routinely assist
passengers with stowing luggage). It would be discrimination to charge a
higher fee or fare for carrying a person with a disability than for
carrying a non-disabled passenger, or a higher fee for stowing a
wheelchair than for stowing a suitcase. (Charging the same fee for
stowing a wheelchair as for stowing a suitcase would be proper,
however.) The fact that it may take somewhat more time and effort to
serve a person with a disability than another passenger does not justify
discriminatory conduct with respect to passengers with disabilities.
    State or local governments may run user-side subsidy arrangements
for the general public (e.g., taxi voucher systems for senior citizens
or low-income persons). Under the DOJ title II rule, these programs
would have to meet ``program accessibility'' requirements, which
probably would require that accessible transportation be made available
to senior citizens or low-income persons with disabilities. This would
not directly require private taxi providers who accept the vouchers to
purchase accessible vehicles beyond the requirements of this rule,
however.
                         Section 37.31 Vanpools
    This provision applies to public vanpool systems the requirements 
for public entities operating demand responsive systems for the general
public. A public vanpool system is one operated by a public entity, or
in which a public entity owns or purchases or leases the vehicles.
Lesser degrees of public involvement with an otherwise private
ridesharing arrangement (e.g., provision of parking spaces, HOV lanes,
coordination or clearinghouse services) do not convert a private into a
public system.
    The requirement for a public vanpool system is that it purchase or
lease an accessible vehicle unless it can demonstrate that it provides
equivalent service to individuals with disabilities, including
individuals who use wheelchairs, as it provides to individuals
[[Page 557]]
without disabilities. For a public vanpool system, the equivalency 
requirement would be met if an accessible vehicle is made available to
and used by a vanpool when an individual with a disability needs such a
vehicle to participate. Public vanpool systems may meet this requirement
through obtaining a percentage of accessible vehicles that is reasonable
in light of demand for them by participants, but this is not required,
so long as the entity can respond promptly to requests for participation
in a vanpool with the provision of an accessible van when needed.
    There is no requirement for private vanpools, defined as a voluntary
arrangement in which the driver is compensated only for expenses.
              Section 37.33 Airport Transportation Systems
    Fixed route transportation systems operated by public airports are 
regarded by this section as fixed route commuter bus systems. As such,
shuttles among terminals and parking lots, connector systems among the
airport and a limited number of other local destinations must acquire
accessible buses, but are not subject to complementary paratransit
requirements. (If a public airport operates a demand responsive system
for the general public, it would be subject to the rules for demand
responsive systems for the general public.)
    It should be noted that this section applies only to transportation
services that are operated by public airports themselves (or by private
contractors who stand in their shoes). When a regular urban mass transit
system serves the airport, the airport is simply one portion of its
service area, treated for purposes of this rule like the rest of its
service area.
    Virtually all airports are served by taxi companies, who are subject
to Sec. 37.29 at airports as elsewhere. In addition, many airports are
served by jitney or shuttle systems. Typically, these systems operate in
a route-deviation or similar variable mode in which there are passenger-
initiated decisions concerning destinations. We view such systems as
demand responsive transportation operated by private entities primarily
engaged in the business of transporting people.
    Since many of these operators are small businesses, it may be
difficult for them to meet equivalency requirements on their own without
eventually having all or nearly all accessible vehicles, which could
pose economic problems. One suggested solution to this problem is for
the operators serving a given airport to form a pool or consortium
arrangement, in which a number of shared accessible vehicles would meet
the transportations of individuals with disabilities. As in other forms
of transportation, such an arrangement would have to provide service in
a nondiscriminatory way (e.g., in an integrated setting, no higher fares
for accessible service).
    Section 37.35 Supplemental Service for Other Transportation Modes
    This section applies to a number of situations in which an operator 
of another transportation mode uses bus or other service to connect its
service with limited other points.
    One instance is when an intercity railroad route is set up such that
the train stops outside the major urban center which is the actual
destination for many passengers. Examples mentioned to us include bus
service run by Amtrak from a stop in Columbus, Wisconsin, to downtown
Madison, or from San Jose to San Francisco. Such service is fixed route,
from the train station to a few points in the metropolitan area, with a
schedule keyed to the train schedule. It would be regarded as commuter
bus service, meaning that accessible vehicles would have to be acquired
but complementary paratransit was not required.
    Another instance is one in which a commuter rail operator uses fixed
route bus service as a dedicated connection to, or extension of, its
rail service. The service may go to park and ride lots or other
destinations beyond the vicinity of the rail line. Again, this service
shares the characteristics of commuter bus service that might be used
even if the rail line were not present, and does not attempt to be a
comprehensive mass transit bus service for the area.
    Of course, there may be instances in which a rail operator uses
demand responsive instead of fixed route service for a purpose of this
kind. In that case, the demand responsive system requirements of the
rule would apply.
    Private entities (i.e., those operating places of public
accommodation) may operate similar systems, as when a cruise ship
operator provides a shuttle or connector between an airport and the
dock. This service is covered by the rules governing private entities
not primarily engaged in the business of transporting people. Fixed
route or demand responsive rules apply, depending on the characteristics
of the system involved.
    One situation not explicitly covered in this section concerns ad hoc
transportation arranged, for instance, by a rail operator when the train
does not wind up at its intended destination. For example, an Amtrak
train bound for Philadelphia may be halted at Wilmington by a track
blockage between the two cities. Usually, the carrier responds by
providing bus service to the scheduled destination or to the next point
where rail service can resume.
    The service that the carrier provides in this situation is
essentially a continuation by other means of its primary service. We
view the obligation of the rail operator as
[[Page 558]]
being to ensure that all passengers, including individuals with 
disabilities, are provided service to the destination in a
nondiscriminatory manner. This includes, for instance, providing service
in the most integrated setting appropriate to the needs of the
individual and service that gets a passenger with a disability to the
destination as soon as other passengers.
                    Section 37.37 Other Applications
    The ADA specifically defines ``public entity.'' Anything else is a 
``private entity.'' The statute does not include in this definition a
private entity that receives a subsidy or franchise from a state or
local government or is regulated by a public entity. Only through the
definition of ``operates'' (see discussion of Sec. 37.23) do private
entities' relationships to public entities subject private entities to
the requirements for public entities. Consequently, in deciding which
provisions of the rule to apply to an entity in other than situations
covered by Sec. 37.23, the nature of the entity--public or private--is
determinative.
    Transportation service provided by public accommodations is viewed
as being provided by private entities not primarily engaged in the
business of transporting people. Either the provisions of this part
applicable to demand responsive or fixed route systems apply, depending
on the nature of a specific system at a specific location. The
distinction between fixed route and demand responsive systems is
discussed in connection with the definitions section above. It is the
responsibility of each private entity, in the first instance, to assess
the nature of each transportation system on a case-by-case basis and
determine the applicable rules.
    On the other hand, conveyances used for recreational purposes, such
as amusement park rides, ski lifts, or historic rail cars or trolleys
operated in museum settings, are not viewed as transportation under this
rule at all. Other conveyances may fit into this category as well.
    The criterion for determining what requirements apply is whether the
conveyances are primarily an aspect of the recreational experience
itself or a means of getting from Point A to Point B. At a theme park,
for instance, a large roller coaster (though a ``train'' of cars on a
track) is a public accommodation not subject to this rule; the tram that
transports the paying customers around the park, with a stop at the
roller coaster, is a transportation system subject to the ``private, not
primarily'' provisions of this part.
    Employer-provided transportation for employees is not covered by
this part, but by EEOC rules under title I of the ADA. (Public entities
are also subject to DOJ's title II rules with respect to employment.)
This exclusion from part 37 applies to transportation services provided
by an employer (whether access to motor pool vehicles, parking shuttles,
employer-sponsored van pools) that is made available solely to its own
employees. If an employer provides service to its own employees and
other persons, such as workers of other employers or customers, it would
be subject to the requirements of this part from private entities not
primarily engaged in the business of transporting people or public
entities, as applicable.
    The rule looks to the private entity actually providing the
transportation service in question in determining whether the ``private,
primarily'' or ``private, not primarily'' rules apply. For example,
Conglomerate, Inc., owns a variety of agribusiness, petrochemical,
weapons system production, and fast food corporations. One of its many
subsidiaries, Green Tours, Inc., provides charter bus service for people
who want to view national parks, old-growth forests, and other
environmentally significant places. It is probably impossible to say in
what business Conglomerate, Inc. is primarily engaged, but it clearly is
not transporting people. Green Tours, Inc., on the other hand, is
clearly primarily engaged in the business of transporting people, and
the rule treats it as such.
    On the other hand, when operating a transportation service off to
the side of to the main business of a public accommodation (e.g., a
hotel shuttle), the entity as a whole would be considered. Even if some
dedicated employees are used to provide the service, shuttles and other
systems provided as a means of getting to, from, or around a public
accommodation remain solidly in the ``private, not primarily'' category.
                  Subpart C--Transportation Facilities
   Section 37.41 Construction of Transportation Facilities by Public 
                                Entities
    Section 37.41 contains the general requirement that all new 
facilities constructed after January 25, 1992, be accessible to and
usable by individuals with disabilities. This provision tracks the
statute closely, and is analogous to a provision in the DOJ regulations
for private entities. Section 226 of the ADA provides little discretion
in this requirement.
    The requirement is keyed to construction which ``begins'' after
January 25, 1992. The regulation defines ``begin'' to mean when a notice
to proceed order has been issued. This term has a standard meaning in
the construction industry, as an instruction to the contractor to
proceed with the work.
    Questions have been raised concerning which standards apply before
January 26, 1992. There are Federal requirements that apply to all
recipients of federal money, depending on the circumstances.
[[Page 559]]
    First, if an entity is a Federal recipient and uses Federal dollars 
to construct the facility, regulations implementing section 504 of the
Rehabilitation Act of 1973 (29 U.S.C. 794), require the recipient to
comply with the Uniform Federal Accessibility Standards.
    Second, since the Civil Rights Restoration Act of 1987 (Pub. L. 100-
259), an operation of a recipient of federal funds would also have to
comply with section 504, even though the activity was not paid for with
Federal funds. Thus, the Uniform Federal Accessibility Standards would
apply to this construction as well.
    As mentioned above, the Department intends, in the period before
January 26, 1991, to view compliance with section 504 in light of
compliance with ADA requirements (this point applies to alterations as
well as new construction). Consequently, in reviewing requests for
grants, contract approvals, exemptions, etc., (whether with respect to
ongoing projects or new, experimental, or one-time efforts), the
Department will, as a policy matter, seek to ensure compliance with ADA
standards.
Section 37.43 Alteration of Transportation Facilities by Public Entities
    This section sets out the accessibility requirements that apply when 
a public entity undertakes an alteration of an existing facility. In
general, the section requires that any alteration, to the maximum extent
feasible, results in the altered area being accessible to and usable by
individuals with disabilities, including persons who use wheelchairs.
The provisions follow closely those adopted by the DOJ, in its
regulations implementing title III of the ADA.
    The section requires specific activities whenever an alteration of
an existing facility is undertaken.
    First, if the alteration is made to a primary function area, (or
access to an area containing a primary function), the entity shall make
the alteration in such a way as to ensure that the path of travel to the
altered area and the restrooms, telephones and drinking fountains
servicing the altered area are readily accessible to and usable by
individuals with disabilities, including individuals who use
wheelchairs.
    Second, alterations to drinking fountains, telephones, and restrooms
do not have to be completed if the cost and scope of making them
accessible is disproportionate.
    Third, the requirement goes into effect for alterations begun after
January 25, 1992.
    Fourth, the term ``maximum extent feasible'' means that all changes
that are possible must be made. The requirement to make changes to the
maximum extent feasible derives from clear legislative history. The
Senate Report states--
    The phrase ``to the maximum extent feasible'' has been included to
allow for the occasional case in which the nature of an existing
facility is such as to make it virtually impossible to renovate the
building in a manner that results in its being entirely accessible to
and usable by individuals with disabilities. In all such cases, however,
the alteration should provide the maximum amount of physical
accessibility feasible.
    Thus, for example the term ``to the maximum extent feasible'' should
be construed as not requiring entities to make building alterations that
have little likelihood of being accomplished without removing or
altering a load-bearing structural member unless the load-bearing
structural member is otherwise being removed or altered as part of the
alteration. (S. Rept. 101-116, at 68).
    Fifth, primary function means a major activity for which the
facility is intended. Primary function areas include waiting areas,
ticket purchase and collection areas, train or bus platforms, baggage
checking and return areas, and employment areas (with some exceptions
stated in the rule, for areas used by service personnel that are very
difficult to access).
    Sixth, ``path of travel'' means a continuous, unobstructed way of
pedestrian passage by means of which the altered area may be approached,
entered, and exited, and which connects the altered area with an
exterior approach and includes restrooms, telephones, and drinking
fountains serving the altered area. If changes to the path of travel are
disproportionate, then only those changes which are not disproportionate
are to be completed.
    Seven, the final rule specifies that costs exceeding 20 percent
would be disproportionate. This is consistent with the DOJ. In
determining costs, the Department intends costs to be based on changes
to the passenger service area that is scheduled for alteration.
    Finally, the Department has defined the term ``begin'', in the
context of begin an alteration that is subject to the alteration
provision to mean when a notice to proceed or work order is issued. Two
terms are used (instead of only notice to proceed in the context of new
construction) because many alterations may be carried out by the entity
itself, in which case the only triggering event would be a work order or
similar authorization to begin.
    In looking at facility concepts like ``disproportionality'' and ``to
the maximum extent feasible,'' the Department will consider any expenses
related to accessibility for passengers. It is not relevant to consider
non-passenger related improvements (e.g., installing a new track bed) or
to permit ``gold-plating'' (attributing to accessibility costs the
expense of non-related improvements, such as charging to accessibility
costs the price of a whole new door, when only adding a new handle to
the old door was needed for accessibility).
[[Page 560]]
       Section 37.47 Key Stations in Light and Rapid Rail Systems
  Section 37.49 Designation of Responsible Person(s) for Intercity and 
                         Commuter Rail Stations
    This section sets forth a mechanism for determining who bears the 
legal and financial responsibility for accessibility modifications to a
commuter and/or intercity rail station. The final provision of the
section is the most important. It authorizes all concerned parties to
come to their own agreement concerning the allocation of responsibility.
Such an agreement can allocate responsibility in any way acceptable to
the parties. The Department strongly encourages parties to come to such
an agreement.
    In the absence of such an agreement, a statutory/regulatory scheme
allocates responsibility. In the first, and simplest, situation posed by
the statute, a single public entity owns more than 50 percent of the
station. In this case, the public entity is the responsible person and
nobody else is required to bear any of the responsibility.
    In the second situation, a private entity owns more than 50 percent
of the station. The private entity need not bear any of the
responsibility for making the station accessible. A public entity owner
of the station, who does not operate passenger railroad service through
the station, is not required to bear any of the responsibility for
making the station accessible. The total responsibility is divided
between passenger railroads operating service through the station, on
the basis of respective passenger boardings. If there is only one
railroad operating service through the station, it bears the total
responsibility.
    The Department believes that reference to passenger boardings is the
most equitable way of dividing responsibility among railroads, since the
number of people drawn to the station by each is likely to reflect
``cost causation'' quite closely. The Department notes, however, that,
as passenger boarding percentages change over time, the portion of
responsibility assigned to each party also may change. Station
modifications may involve long-term capital investment and planning,
while passenger boarding percentages are more volatile. Some railroads
may stop serving a station, while others may begin service, during the
period of time before modifications to the station are complete. To help
accommodate such situations, the rule refers to passenger boardings
``over the entire period during which the station is made accessible.''
    This language is intended to emphasize that as circumstances change,
the parties involved have the responsibility to adjust their
arrangements for cost sharing. For example, suppose Railroad A has 30
percent of the passenger boardings in year 1, but by year 10 has 60
percent of the boardings. It would not be fair for Railroad A to pay
only 30 percent of the costs of station modifications occurring in later
years. Ultimately, the total cost burden for modifying the station over
(for example) 20 years would be allocated on the share of the total
number or boardings attributable to each railroad over the whole 20 year
period, in order to avoid such unfairness.
    The third, and most complicated, situation is one in which no party
owns 50 percent of the station. For example, consider the following
hypothetical situation:
------------------------------------------------------------------------
                                                 Ownership    Boardings
                     Party                       percentage   percentage
------------------------------------------------------------------------
Private freight RR............................           40            0
City..........................................           30            0
Amtrak........................................            0           25
Commuter A....................................           30           50
Commuter B....................................            0           25
------------------------------------------------------------------------
The private freight railroad drops out of the calculation of who is 
responsible. All of the responsibility would be allocated among four
public entities: the city (a public entity who does not operate railroad
service), Amtrak, and the two commuter railroads. Half the
responsibility would go to public entity owners of the station (whether
or not they are railroads who run passenger service through the
station). The other half of the responsibility would go to railroads who
run passenger service through the station (whether or not they are
station owners).
    On the ownership side of the equation, the city and Commuter A each
own half of that portion of the station that is not owned by the private
freight railroad. Therefore, the two parties divide up the ownership
half of the responsibility equally. Based on their ownership interest,
each of these two parties bears 25 percent of the responsibility for the
entire station. Note that, should ownership percentages or owners change
over the period during which the station is to be made accessible, these
percentages may change. It is ownership percentage over this entire
period that ultimately determines the percentage of responsibility.
    On the passenger rail operations side of the equation, 50 percent of
passenger boardings are attributable to Commuter A and 25 percent each
to Commuter B and Amtrak. Therefore, half of this portion of the
responsibility belongs to Commuter A, while a quarter share each goes to
the other railroads. This means that, based on passenger boardings, 25
percent of the responsibility goes to Commuter A, 12.5 percent to
Commuter B, and 12.5 percent to Amtrak. Again, it is the proportion of
passenger boardings over the entire length of the period during which
the station is made accessible that ultimately determines the percentage
of responsibility.
[[Page 561]]
    In this hypothetical, Commuter A is responsible for a total of 50 
percent of the responsibility for the station. Commuter A is responsible
for 25 percent of the responsibility because of its role as a station
owner and another 25 percent because of its operation of passenger rail
service through the station.
    The Department recognizes that there will be situations in which
application of this scheme will be difficult (e.g., involving problems
with multiple owners of a station whose ownership percentages may be
difficult to ascertain). The Department again emphasizes that agreement
among the parties is the best way of resolving these problems, but we
are willing to work with the parties to ensure a solution consistent
with this rule.
           Section 37.51 Key Stations in Commuter Rail Systems
    These sections require that key stations in light, rapid, and 
commuter rail systems be made accessible as soon as practicable, but no
later than July 26, 1993. Being made accessible, for this purpose, means
complying with the applicable provisions of appendix A to this part.
``As soon as practicable'' means that, if modification can be made
before July 26, 1993, they must be. A rail operator that failed to make
a station accessible by July 1993 would be in noncompliance with the ADA
and this rule, except in a case where an extension of time had been
granted.
    What is a key station? A key station is one designated as such by
the commuter authority or light/rapid rail operator, through the
planning process and public participation process set forth in this
section. The five criteria listed in the regulation are intended to
guide the selection process but, while the entity must take these
criteria into account (and this consideration must be reflected in the
planning process and documents), they are not mandatory selection
standards. That is, it is not required that every station that meets one
of the criteria be designated as a key station. Since the criteria are
not mandatory selection standards, the understanding of their terms is
also a matter appropriately left to the planning process. A tight,
legalistic definition is not necessary in the context of factors
intended for consideration. For instance, what constitutes a major
activity center or how close a station needs to be to another station to
not be designated as key depend largely on local factors that it would
not be reasonable to specify in this rule.
    Given the wide discretion permitted to rail operators in identifying
key stations, there would be no objection to identifying as a key
station a new (presumably accessible) station now under construction.
Doing so would involve consideration of the key station criteria and
would be subject to the planning/public participation process.
    If an extension to a rail system (e.g., a commuter system) is made,
such that the system comes to include existing inaccessible stations
that have not previously been part of the system, the Department
construes the ADA to require application of key station accessibility in
such a situation. The same would be true for a new start commuter rail
system that began operations using existing stations. Key station
planning, designation of key stations, and with being consistent with
the ADA would be required. The Department would work with the commuter
authority involved on a case-by-case basis to determine applicable time
limits for accessibility, consistent with the time frames of the ADA.
    The entity must develop a compliance plan, subject to the public
participation and planning process set forth in paragraph (d) of each of
these sections. Note that this plan must be completed by July 26, 1992,
not January 26, 1992, as in the case of paratransit plans. The key
station plans must be submitted to FTA at that time. (The statute does
not require FTA approval of the plans, however.).
    A rail operator may request an extension of the July 1993 completion
deadline for accessibility modifications to one or more key stations.
The extension for light and rapid rail stations can be up to July 2020,
though two thirds of the key stations (per the legislative history of
the statute, selected in a way to maximize accessibility to the whole
system) must be accessible by July 2010.
    Commuter rail stations can be extended up to July 2010.
    Requests for extension of time must be submitted by July 26, 1992.
FTA will review the requests on a station-by-station basis according to
the statutory criterion, which is whether making the station accessible
requires extraordinarily expensive alterations. An extraordinarily
expensive alteration is raising the entire platform, installing an
elevator, or making another alteration of similar cost and magnitude. If
another means of making a station accessible (e.g., installation of a
mini-high platform in a station where it is not necessary to install an
elevator or to provide access to the platform for wheelchair users),
then an extension can be granted only if the rail operator shows that
the cost and magnitude of the alteration is similar to that of an
elevator installation or platform raising.
    The rule does not include a specific deadline for FTA consideration
of an extension request. However, since we are aware that, in the
absence of an extension request, accessibility must be completed by July
1993, we will endeavor to complete review of plans as soon as possible,
to give as much lead time as possible to local planning and
implementation efforts.
[[Page 562]]
    Once an extension is granted, the extension applies to all 
accessibility modifications in the station. However, the rail operator
should not delay non-extraordinarily expensive modifications to the
station. The key station plan and any extension request should include a
schedule for phasing in non-extraordinarily expensive modifications to
the station. For example, even if a key station is not going to be
accessible to wheelchair users for 15 years, pending the installation of
an elevator, the rail operator can improve its accessibility to persons
with visual impairments by installing tactile strips.
    An extension cannot be granted except for a particular station which
needs an extraordinarily expensive modification. An extension cannot be
granted non-extraordinarily expensive changes to Station B because the
extraordinarily expensive changes to Station A will absorb many
resources. Non-extraordinarily expensive changes, however costly
considered collectively for a system, are not, under the statute,
grounds for granting an extension to one or more stations or the whole
system. Only particular stations where an extraordinarily expensive
modification must be made qualify for extensions.
    The FTA Administrator can approve, modify, or disapprove any request
for an extension. For example, it is not a forgone conclusion that a
situation for which an extension is granted will have the maximum
possible extension granted. If it appears that the rail operator can
make some stations accessible sooner, FTA can grant an extension for a
shorter period (e.g., 2005 for a particular station rather than 2010).
          Section 37.53 Exception for New York and Philadelphia
    Consistent with the legislative history of the ADA, this section 
formally recognizes the selection of key stations in two identified
litigation settlement agreements in New York and Philadelphia as in
compliance with the ADA. Consequently, the entities involved can limit
their key station planning process to issues concerning the timing of
key station accessibility. The section references also Sec. 37.9, which
provides that key station accessibility alterations which have already
been made, or which are begun before January 26, 1992, and which conform
to specified prior standards, do not have to be re-modified. On the
other hand, alterations begun after January 25, 1992 (including
forthcoming key station modifications under the New York and
Philadelphia agreements), must meet the requirements of appendix A to
this part.
    This is an exception only for the two specified agreements. There
are no situations in which other cities can take advantage of this
provision. Nor are the provisions of the two agreements normative for
other cities. Other cities must do their own planning, with involvement
from local citizens, and cannot rely on agreements unique to New York
and Philadelphia to determine the appropriate number of percentage of
key stations or other matters.
                   Section 37.57 Required Cooperation
    This section implements Sec. 242(e)(2)(C) of the ADA, which treats 
as discrimination a failure, by an owner or person in control of an
intercity rail station, to provide reasonable cooperation to the
responsible persons' efforts to comply with accessibility requirements.
For example, the imposition by the owner of an unreasonable insurance
bond from the responsible person as a condition of making accessibility
modifications would violate this requirement. See H. Rept. 101-485 at
53.
    The statute also provides that failure of the owner or person in
control to cooperate does not create a defense to a discrimination suit
against the responsible person, but the responsible person would have a
third party action against the uncooperative owner or person in control.
The rule does not restate this portion of the statute in the regulation,
since it would be implemented by the courts if such an action is
brought. Since cooperation is also a regulatory requirement, however,
the Department could entertain a section 504 complaint against a
recipient of Federal funds who failed to cooperate.
    The House Energy and Commerce Committee provided as an example of an
action under this provision a situation in which a failure to cooperate
leads to a construction delay, which in turn leads to a lawsuit by an
individual with disabilities against the responsible person for missing
an accessibility deadline. The responsible person could not use the lack
of cooperation as a defense in the lawsuit, but the uncooperative party
could be made to indemnify the responsible person for damages awarded
the plaintiff. Also, a responsible person could obtain an injunction to
force the recalcitrant owner or controller of the station to permit
accessibility work to proceed. (Id.)
    This provision does not appear to be intended to permit a
responsible person to seek contribution for a portion of the cost of
accessibility work from a party involved with the station whom the
statute and Sec. 37.49 do not identify as a responsible person. It
simply provides a remedy for a situation in which someone impedes the
responsible person's efforts to comply with accessibility obligations.
[[Page 563]]
 Section 37.59 Differences in Accessibility Completion Date Requirements
    Portions of the same station may have different accessibility 
completion date requirements, both as the result of different statutory
time frames for different kinds of stations and individual decisions
made on requests for extension. The principle at work in responding to
such situations is that if part of a station may be made accessible
after another part, the ``late'' part of the work should not get in the
way of people's use of modifications resulting from the ``early'' part.
    For example, the commuter part of a station may have to be made
accessible by July 1993 (e.g., there is no need to install an elevator,
and platform accessibility can be achieved by use of a relatively
inexpensive mini-high platform). The Amtrak portion of the same station,
by statute, is required to be accessible as soon as practicable, but no
later than July 2010. If there is a common entrance to the station, that
commuter rail passengers and Amtrak passengers both use, or a common
ticket counter, it would have to be accessible by July 1993. If there
were a waiting room used by Amtrak passengers but not commuter
passengers (who typically stand and wait on the platform at this
station), it would not have to be accessible by July 1993, but if the
path from the common entrance to the commuter platform went through the
waiting room, the path would have to be an accessible path by July 1993.
Section 37.61 Public Transportation Programs and Activities in Existing 
                               Facilities
    This section implements section 228(a) of the ADA and establishes 
the general requirement for entities to operate their transportation
facilities in a manner that, when viewed in its entirety, is accessible
to and usable by individuals with disabilities. The section clearly
excludes from this requirement access by persons in wheelchairs, unless
these changes would be necessitated by the alterations or key station
provisions.
    This provision is intended to cover activities and programs of an
entity that do not rise to the level of alteration. Even if an entity is
not making alterations to a facility, it has a responsibility to conduct
its program in an accessible manner. Examples of possible activities
include user friendly farecards, schedules, of edge detection on rail
platforms, adequate lighting, telecommunication display devices (TDDs)
or text telephones, and other accommodations for use by persons with
speech and hearing impairments, signage for people with visual
impairments, continuous pathways for persons with visual and ambulatory
impairments, and public address systems and clocks.
    The Department did not prescribe one list of things that would be
appropriate for all stations. For example, we believe that tactile
strips are a valuable addition to platforms which have drop-offs. We
also believe that most larger systems, to the extent they publish
schedules, should make those schedules readily available in alternative
formats. We encourage entities to find this another area which benefits
from its commitment to far-reaching public participation efforts.
    Subpart D--Acquisition of Accessible Vehicles by Public Entities
   Section 37.71 Purchase or Lease of New Non-Rail Vehicles by Public 
                 Entities Operating Fixed Route Systems
    This section sets out the basic acquisition requirements for a 
public entity purchasing a new vehicle. Generally, the section requires
any public entity who purchases or leases a new vehicle to acquire an
accessible vehicle. There is a waiver provision if lifts are unavailable
and these provisions track the conditions in the ADA. One statutory
condition, that the public entity has made a good faith effort to locate
a qualified manufacturer to supply the lifts, presumes a direct
relationship between the transit provider and the lift manufacturer. In
fact, it is the bus manufacturer, rather than the transit provider
directly, who would have the task of looking for a supplier of lifts to
meet the transit provider's specifications. The task must still be
performed, but the regulation does not require the transit provider to
obtain actual information about available lifts. Rather the bus
manufacturer obtains the information and provides this assurance to the
entity applying for the waiver, and the entity may rely on this
representation. More specifically, the regulation requires that each
waiver request must include a copy of the written solicitation (showing
that it requested lift-equipped vehicles) and written responses from
lift manufacturers to the vehicle manufacturer documenting their
inability to provide the lifts. The information from the lift
manufacturer must also include when the lifts will be available.
    In addition, the waiver request must include copies of
advertisements in trade publications and inquiries to trade associations
seeking lifts for the buses. The public entity also must include a full
justification for the assertion that a delay in the bus procurement
sufficient to obtain a lift-equipped bus would significantly impair
transportation services in the community. There is no length of time
that would be a per se delay constituting a ``significant impairment''.
It will be more difficult to obtain a waiver if a relatively short
rather than relatively
[[Page 564]]
lengthy delay is involved. A showing of timetables, absent a showing of 
significant impairment of actual transit services, would not form a
basis for granting a waiver.
    Any waiver granted by the Department under this provision will be a
conditional waiver. The conditions are intended to ensure that the
waiver provision does not create a loophole in the accessible vehicle
acquisition requirement that Congress intended to impose. The ADA
requires a waiver to be limited in duration and the rule requires a
termination date to be included. The date will be established on the
basis of the information the Department receives concerning the
availability of lifts in the waiver request and elsewhere. In addition,
so that a waiver does not become open-ended, it will apply only to a
particular procurement. If a transit agency wants a waiver for a
subsequent delivery of buses in the procurement, or another procurement
entirely, it will have to make a separate waiver request.
    For example, if a particular order of buses is delivered over a
period of time, each delivery would be the potential subject of a waiver
request. First, the entity would request a waiver for the first shipment
of buses. If all of the conditions are met, the waiver would be granted,
with a date specified to coincide with the due date of the lifts. When
the lifts become available those buses would have to be retrofitted with
the lifts. A subsequent delivery of buses--on the same order--would have
to receive its own waiver, subject to the same conditions and
specifications of the first waiver.
    The purpose of the waiver, as the Department construes it, is to
address a situation in which (because of a sudden increase in the number
of lift-equipped buses requested) lift manufacturers are unable to
produce enough lifts to meet the demand in a timely fashion.
  Section 37.73 Purchase or Lease of Used Non-Rail Vehicles by Public 
                 Entities Operating a Fixed Route System
    The basic rule is that an acquisition of a used vehicle would have 
to be for an accessible vehicle.
    There is an exception, however, for situations in which the transit
provider makes a good faith effort to obtain accessible used vehicles
but does not succeed in finding them. The ADA requires transit agencies
to purchase accessible used vehicles, providing a ``demonstrated good
faith efforts'' exception to the requirement. The reports of the Senate
Committee on Labor and Human Resources and the House Committee on
Education and Labor offered the following guidance on what ``good faith
efforts'' involve:
    The phrase ``demonstrated good faith efforts'' is intended to
require a nationwide search and not a search limited to a particular
region. For instance, it would not be enough for a transit operator to
contact only the manufacturer where the transit authority usually does
business to see if there are accessible used buses. It involves the
transit authority advertising in a trade magazine, i.e., Passenger
Transport, or contacting the transit trade association, American Public
Transit Association (APTA), to determine whether accessible used
vehicles are available. It is the Committee's expectation that as the
number of buses with lifts increases, the burden on the transit
authority to demonstrate its inability to purchase accessible vehicles
despite good faith efforts will become more and more difficult to
satisfy. S. Rept. 101-116 at 49; H. Rept. 101-485 at 90.
    Consistent with this guidance, this section requires that good faith
efforts include specifying accessible vehicles in bid solicitations. The
section also requires that the entity retain for two years documentation
of that effort, and that the information be available to FTA and the
public.
    It does not meet the good faith efforts requirement to purchase
inaccessible, rather than accessible, used buses, just because the
former are less expensive, particularly if the difference is a
difference attributable to the presence of a lift. There may be
situations in which good faith efforts involve buying fewer accessible
buses in preference to more inaccessible buses.
    The public participation requirements involved in the development of
the paratransit plans for all fixed route operators requires an ongoing
relationship, including extensive outreach, to the community likely to
be using its accessible service. We believe that it will be difficult to
comply with the public participation requirements and not involve the
affected community in the decisions concerning the purchase or lease of
used accessible vehicles.
    There is an exception to these requirements for donated vehicles.
Not all ``zero dollar'' transfers are donations, however. The
legislative history to this provision provides insight.
    It is not the Committee's intent to make the vehicle accessibility
provisions of this title applicable to vehicles donated to a public
entity. The Committee understands that it is not usual to donate
vehicles to a public entity. However, there could be instances where
someone could conceivably donate a bus to a public transit operator in a
will. In such a case, the transit operators should not be prevented from
accepting a gift.
    The Committee does not intend that this limited exemption for
donated vehicles be used to circumvent the intent of the ADA. For
example, a local transit authority could not arrange to be the recipient
of donated inaccessible buses. This would be a violation of the ADA. S.
Rpt. 101-116, at 46; H. Rpt. 101-486, at 87.
[[Page 565]]
    Entities interested in accepting donated vehicles must submit a 
request to FTA to verify that the transaction is a donation.
    There is one situation, in which a vehicle has prior use is not
treated as a used vehicle. If a vehicle has been remanufactured, and it
is within the period of the extension of its useful life, it is not
viewed as a used vehicle (see H. Rept. 101-485, Pt 1 at 27). During this
period, such a vehicle may be acquired by another entity without going
through the good faith efforts process. This is because, at the time of
its remanufacture, the bus would have been made as accessible if
feasible. When the vehicle has completed its extended useful life (e.g.,
the beginning of year six when its useful life has extended five years),
it becomes subject to used bus requirements.
 Section 37.75 Remanufacture of Non-Rail Vehicles and Purchase or Lease 
 of Remanufactured Non-rail Vehicles by Public Entities Operating Fixed
                              Route Systems
    This section tracks the statute closely, and contains the following 
provisions. First, it requires any public entity operating a fixed route
system to purchase an accessible vehicle if the acquisition occurs after
August 25, 1990, if the vehicle is remanufactured after August 25, 1990,
or the entity contracts or undertakes the remanufacture of a vehicle
after August 25, 1990. The ADA legislative history makes it clear that
remanufacture is to include changes to the structure of the vehicle
which extend the useful life of the vehicle for five years. It clearly
is not intended to capture things such as engine overhauls and the like.
    The term remanufacture, as used in the ADA context, is different
from the use of the term in previously issued FTA guidance. The term has
a specific meaning under the ADA: there must be structural work done to
the vehicle and the work must extend the vehicle's useful life by five
years.
    The ADA imposes no requirements on what FTA traditionally considers
bus rehabilitation. Such work involves rebuilding a bus to original
specifications and focuses on mechanical systems and interiors. Often
this work includes replacing components. It is less extensive than
remanufacture.
    The statute, and the rule, includes an exception for the
remanufacture of historical vehicles. This exception applies to the
remanufacture of or purchase of a remanufactured vehicle that (1) is of
historic character; (2) operates solely on a segment of a fixed route
system which is on the National Register of Historic Places; and (3)
making the vehicle accessible would significantly alter the historic
character of the vehicle. The exception only extends to the
remanufacture that would alter the historic character of the vehicle.
All modifications that can be made without altering the historic
character (such as slip resistant flooring) must be done.
   Section 37.77 Purchase or Lease of New Non-Rail Vehicles by Public 
  Entities Operating a Demand Responsive System for the General Public
    Section 224 of the ADA requires that a public entity operating a 
demand responsive system purchase or lease accessible new vehicles, for
which a solicitation is made after August 25, 1990, unless the system,
when viewed in its entirety, provides a level of service to individuals
with disabilities, including individuals who use wheelchairs, equivalent
to the level of service provided to individuals without disabilities.
This section is the same as the October 4, 1990 final rule which
promulgated the immediately effective acquisition requirements of the
ADA.
    The Department has been asked to clarify what ``accessible when
viewed in its entirety'' means in the context of a demand responsive
system being allowed to purchase an inaccessible vehicle. First, it is
important to note that this exception applies only to demand responsive
systems (and not fixed route systems). The term ``equivalent service''
was discussed during the passage of the ADA. Material from the
legislative history indicates that ``when viewed in its entirety/
equivalent service'' means that ``when all aspects of a transportation
system are analyzed, equal opportunities for each individual with a
disability to use the transportation system must exist. (H. Rept. 101-
184, Pt. 2, at 95; S. Rept. 101-116 at 54). For example, both reports
said that ``the time delay between a phone call to access the demand
responsive system and pick up the individual is not greater because the
individual needs a lift or ramp or other accommodation to access the
vehicle.'' (Id.)
    Consistent with this, the Department has specified certain service
criteria that are to be used when determining if the service is
equivalent. As in previous rulemakings on this provision, the standards
(which include service area, response time, fares, hours and days of
service, trip purpose restrictions, information and reservations
capability, and other capacity constraints) are not absolute standards.
They do not say, for example, that a person with a disability must be
picked up in a specified number of hours. The requirement is that there
must be equivalent service for all passengers, whether or not they have
a disability. If the system provides service to persons without
disabilities within four hours of a call for service, then passengers
with disabilities must be afforded the same service.
    The Department has been asked specifically where an entity should
send its ``equivalent level of service'' certifications. We provide the
following: Equivalent level of service certifications should be
submitted to the state program office if you are a public entity
receiving FTA funds through the
[[Page 566]]
state. All other entities should submit their equivalent level of 
service certifications to the FTA regional office (listed in appendix B
of this part). Certifications must be submitted before the acquisition
of the vehicles.
    Paragraph (e) of this section authorizes a waiver for the
unavailability of lifts. Since demand responsive systems need not
purchase accessible vehicles if they can certify equivalent service, the
Department has been asked what this provision is doing in this section.
    Paragraph (e) applies in the case in which an entity operates a
demand responsive system, which is not equivalent, and the entity cannot
find accessible vehicles to acquire. In this case, the waiver provisions
applicable to a fixed route entity purchasing or leasing inaccessible
new vehicles applies to the demand responsive operator as well.
Section 37.79 Purchase or Lease of New Rail Vehicles by Public Entities 
                  Operating Rapid or Light Rail Systems
    This section echoes the requirement of Sec. 37.71--all new rail 
cars must be accessible.
Section 37.81 Purchase or Lease of Used Rail Vehicles by Public Entities 
                  Operating Rapid or Light Rail Systems
    This section lays out the requirements for a public entity acquiring 
a used rail vehicle. The requirements and standards are the same as
those specified for non-rail vehicles in Sec. 37.73. While we recognize
it may create difficulties for entities in some situations, the statute
does not include any extension or short-term leases. The Department will
consider, in a case-by-case basis, how the good faith efforts
requirement would apply in the case of an agreement between rail
carriers to permit quick-response, short-term leases of cars over a
period of time.
 Section 37.83 Remanufacture of Rail Vehicles and Purchase or Lease of 
Remanufactured Rail Vehicles by Public Entities Operating Rapid or Light
                               Rail System
    This section parallels the remanufacturing section for buses, 
including the exception for historical vehicles. With respect to an
entity having a class of historic vehicles that may meet the standards
for the historic vehicle exception (e.g., San Francisco cable cars), the
Department would not object to a request for application of the
exception on a system-wide, as approved to car-by-car, basis.
 Section 37.85 Purchase or Lease of New Intercity and Commuter Rail Cars
    This section incorporates the statutory requirement that new 
intercity and commuter rail cars be accessible. The specific
accessibility provisions of the statute (for example, there are slightly
different requirements for intercity rail cars versus commuter rail
cars) are specified in part 38 of this regulation. These standards are
adopted from the voluntary guidelines issues by the Access Board. The
section basically parallels the acquisition requirements for buses and
other vehicles. It should be noted that the definition of commuter rail
operator clearly allows for additional operators to qualify as commuter,
since the definition describes the functional characteristics of an
operator, as well as listing existing commuter rail operators.
    We would point out that the ADA applies this requirement to all new
vehicles. This includes not only vehicles and systems that currently are
being operated in the U.S., but new, experimental, or imported vehicles
and systems. The ADA does not stand in the way of new technology, but it
does require that new technology, and the benefits it brings, be
accessible to all persons, including those with disabilities. This point
applies to all vehicle acquisition provisions of this regulation,
whether for rail or non-rail, private or public, fixed route or demand
responsive vehicles and systems.
Section 37.87 Purchase or Lease of Used Intercity and Commuter Rail Cars
    The section also parallels closely the requirements in the ADA for 
the purchase or lease of accessible used rail vehicles. We acknowledge
that, in some situations, the statutory requirement for to make good
faith efforts to acquire accessible used vehicles may create
difficulties for rail operators attempting to lease rail cars quickly
for a short time (e.g., as fill-ins for cars which need repairs). In
some cases, it may be possible to mitigate these difficulties through
means such as making good faith efforts with respect to an overall
agreement between two rail operators to make cars available to one
another when needed, rather than each time a car is provided under such
an agreement.
     Section 37.89 Remanufacture of Intercity and Commuter Rail Cars
    This section requires generally that remanufactured cars be made 
accessible, to the maximum extent feasible. Feasible is defined in
paragraph (c) of the section to be ``unless an engineering analysis
demonstrates that remanufacturing the car to be accessible would have a
significant adverse effect on the structural integrity of the car.''
Increased cost is not a reason for viewing other sections of this
subpart concerning remanufactured vehicles.
    In addition, this section differs from the counterpart sections for
non-rail vehicles and light and rapid rail vehicles in two ways. First,
the extension of useful life needed to trigger the section is ten rather
than five
[[Page 567]]
years. Second, there is no historic vehicle exception. Both of these 
differences are statutory.
    Remanufacture of vehicles implies work that extends their expected
useful life of the vehicle. A mid-life overhaul, not extending the total
useful life of the vehicle, would not be viewed as a remanufacture of
the vehicle.
                  Section 37.93 One Car Per Train Rule
    This section implements the statutory directive that all rail 
operators (light, rapid, commuter and intercity) have at least one car
per train accessible to persons with disabilities, including individuals
who use wheelchairs by July 26, 1995. (See ADA sections 242(a)(1),
242(b)(1), 228(b)(1).) Section 37.93 contains this general requirement.
In some cases, entities will meet the one-car-per train rule through the
purchase of new cars. In this case, since all new rail vehicles have to
be accessible, compliance with this provision is straightforward.
    However, certain entities may not be purchasing any new vehicles by
July 26, 1995, or may not be purchasing enough vehicles to ensure that
one car per train is accessible. In these cases, these entities will
have to retrofit existing cars to meet this requirement. What a
retrofitted car must look like to meet the requirement has been decided
by the Access Board. These standards are contained in part 38 of this
rule.
    We would point that, consistent with the Access Board standards, a
rail system using mini-high platforms or wayside lifts is not required,
in most circumstances, to ``double-stop'' in order to give passengers a
chance to board the second or subsequent car in a train at the mini-high
platform or way-side lift. The only exception to this would be a
situation in which all the wheelchair positions spaces in the first car
were occupied. In this case, the train would have to double-stop to
allow a wheelchair user to board, rather than passing the person by when
there was space available in other than the first car.
            Section 37.95 Ferries and Other Passenger Vessels
    Although at this time there are no specific requirements for 
vessels, ferries and other passenger vessels operated by public entities
are subject to the requirements of Sec. 37.5 of this part and
applicable requirements of 28 CFR part 35, the DOJ rule under title II
of the ADA.
    Subpart E--Acquisition of Accessible Vehicles by Private Entities
    Section 37.101 Purchase or Lease of Non-Rail Vehicles by Private 
  Entities Not Primarily Engaged in the Business of Transporting People
 Section 37.103 Purchase or Lease of New Non-Rail Vehicles by Private 
    Entities Primarily Engaged in the Business of Transporting People
               Section 37.105 Equivalent Service Standard
    The first two sections spell out the distinctions among the 
different types of service elaborated in the ADA and requirements that
apply to them. For clarity, we provide the following chart.
               Private Entities ``Not Primarily Engaged''
------------------------------------------------------------------------
           System type             Vehicle capacity       Requirement
------------------------------------------------------------------------
Fixed Route.....................  Over 16...........  Acquire accessible
                                                       vehicle.
Fixed Route.....................  16 or less........  Acquire accessible
                                                       vehicle, or
                                                       equivalency.
Demand Responsive...............  Over 16...........  Acquire accessible
                                                       vehicle, or
                                                       equivalency.
Demand Responsive...............  16 or less........  Equivalency--see
                                                       Sec. 37.171.
------------------------------------------------------------------------

                 Private Entities ``Primarily Engaged''
------------------------------------------------------------------------
                                     Vehicle type/
           System type                 capacity           Requirement
------------------------------------------------------------------------
Fixed route.....................  All new vehicles    Acquire accessible
                                   except auto, van    vehicle.
                                   with less than 8
                                   capacity, or over
                                   the road bus.
Demand responsive...............  Same as above.....  Acquire accessible
                                                       vehicle, or
                                                       equivalency.
Either fixed route or demand      New vans with a     Same as above.
 responsive.                       capacity of less
                                   than 8.
------------------------------------------------------------------------
    Equivalency, for purposes of these requirements, is spelled out in 
Sec. 37.105. It is important to note that some portions of this section
(referring to response time, reservations capacity, and restrictions on
trip purpose) apply only to demand responsive systems. Another provision
(schedules/headways) applies only to fixed route systems. This is
because these points of comparison apply only to one or the other type
system. The remaining provisions apply to both kinds of systems.
    In applying the provisions this section, it is important to note
that they are only points of comparison, not substantive criteria. For
example, unlike the response time criterion of Sec. 37.131, this
section does not require that a system provide any particular
[[Page 568]]
response time. All it says is that, in order for there to be 
equivalency, if the demand responsive system gets a van to a non-
disabled person in 2 hours, or 8 hours, or a week and a half after a
call for service, the system must get an accessible van to a person with
a disability in 2 hours, or 8 hours, or a week and a half.
    The vehicle acquisition and equivalency provisions work together in
the following way. A private entity is about to acquire a vehicle for a
transportation service in one of the categories to which equivalency is
relevant. The entity looks at its present service (considered without
regard to the vehicle it plans to acquire). Does the present service
meet the equivalency standard? (In answering this question, the point of
reference is the next potential customer who needs an accessible
vehicle. The fact that such persons have not called in the past is
irrelevant). If not, the entity is required to acquire an accessible
vehicle. If so, the entity may acquire an accessible or an inaccessible
vehicle. This process must be followed every time the entity purchases
or leases a vehicle. Given changes in the mixes of both customers and
vehicles, the answer to the question about equivalency will probably not
be the same for an entity every time it is asked.
    One difference between the requirements for ``private, not
primarily'' and ``private, primarily'' entities is that the requirements
apply to all vehicles purchased or leased for the former, but only to
new vehicles for the latter. This means that entities in the latter
category are not required to acquire accessible vehicles when they
purchase or lease used vehicles. Another oddity in the statute which
entities should note is that the requirement for ``private, primarily''
entities to acquire accessible vans with less than eight passenger
capacity (or provide equivalent service) does not become effective until
after February 25, 1992 (This also date also applies no private entities
``primarily engaged'' which purchase passenger rail cars). All other
vehicle acquisition requirements became effective after August 25, 1990.
    The Department views the line between ``private, primarily'' and
``private, not primarily'' entities as being drawn with respect to the
bus, van, or other service which the entity is providing. For example,
there is an obvious sense in which an airline or car rental company is
primarily engaged in the business of transporting people. If the airline
or car rental agency runs a shuttle bus from the airport terminal to a
downtown location or a rental car lot, however, the Department views
that shuttle service as covered by the ``private, not primarily''
requirements of the rule (see discussion of the Applicability sections
above). This is because the airline or car rental agency is not
primarily engaged in the business of providing transportation by bus or
van. The relationship of the bus or van service to an airline's main
business is analogous to that of a shuttle to a hotel. For this purpose,
it is of only incidental interest that the main business of the airline
is flying people around the country instead of putting them up for the
night.
           Section 37.109 Ferries and Other Passenger Vessels
    Although at this time there are no specific requirements for 
vessels, ferries and other passenger vessels operated by private
entities are subject to the requirements of Sec. 37.5 of this part and
applicable requirements of 28 CFR part 36, the DOJ rule under title III
of the ADA.
      Subpart F--Paratransit as a Complement to Fixed Route Service
  Section 37.121 Requirement for Comparable Complementary Paratransit 
                                 Service
    This section sets forth the basic requirement that all public 
entities who operate a fixed route system have to provide paratransit
service that is both comparable and complementary to the fixed route
service. By ``complementary,'' we mean service that acts as a ``safety
net'' for individuals with disabilities who cannot use the fixed route
system. By ``comparable,'' we mean service that meets the service
criteria of this subpart.
    This requirement applies to light and rapid rail systems as well as
to bus systems, even when rail and bus systems share all or part of the
same service area. Commuter bus, commuter rail and intercity rail
systems do not have to provide paratransit, however. The remaining
provisions of subpart F set forth the details of the eligibility
requirements for paratransit, the service criteria that paratransit
systems must meet, the planning process involved, and the procedures for
applying for waivers based on undue financial burden.
    Paratransit may be provided by a variety of modes. Publicly operated
dial-a-ride vans, service contracted out to a private paratransit
provider, user-side subsidy programs, or any combination of these and
other approaches is acceptable. Entities who feel it necessary to apply
for an undue financial burden waiver should be aware that one of the
factors FTA will examine in evaluating waiver requests is efficiencies
the provider could realize in its paratransit service. Therefore, it is
important for entities in this situation to use the most economical and
efficient methods of providing paratransit they can devise.
    It is also important for them to establish and consistently
implement strong controls against fraud, waste and abuse in the
paratransit system. Fraud, waste and abuse can drain significant
resources from a system and control of these problems is an important
``efficiency for any paratransit system.
[[Page 569]]
It will be difficult for the Department to grant an undue financial 
burden waiver to entities which do not have a good means of determining
if fraud, waste and abuse are problems and adequate methods of combating
these problems, where they are found to exist.
          Section 37.123 ADA Paratransit Eligibility--Standards
                           General Provisions
    This section sets forth the minimum requirements for eligibility for 
complementary paratransit service. All fixed route operators providing
complementary paratransit must make service available at least to
individuals meeting these standards. The ADA does not prohibit providing
paratransit service to anyone. Entities may provide service to
additional persons as well. Since only service to ADA eligible persons
is required by the rule, however, only the costs of this service can be
counted in the context of a request for an undue financial burden
waiver.
    When the rule says that ADA paratransit eligibility shall be
strictly limited to persons in the eligible categories, then, it is not
saying that entities are in any way precluded from serving other people.
It is saying that the persons who must be provided service, and counting
the costs of providing them service, in context of an undue burden
waiver, are limited to the regulatory categories.
                         Temporary Disabilities
    Eligibility may be based on a temporary as well as a permanent 
disability. The individual must meet one of the three eligibility
criteria in any case, but can do so for a limited period of time. For
example, if an individual breaks both legs and is in two casts for
several weeks, becomes a wheelchair user for the duration, and the bus
route that would normally take him to work is not accessible, the
individual could be eligible under the second eligibility category. In
granting eligibility to such a person, the entity should establish an
expiration date for eligibility consistent with the expected end of the
period disability.
                        Trip-by-Trip Eligibility
    A person may be ADA paratransit eligible for some trips but not 
others. Eligibility does not inhere in the individual or his or her
disability, as such, but in meeting the functional criteria of inability
to use the fixed route system established by the ADA. This inability is
likely to change with differing circumstances.
    For example, someone whose impairment-related condition is a severe
sensitivity to temperatures below 20 degrees is not prevented from using
fixed route transit when the temperature is 75 degrees. Someone whose
impairment-related condition is an inability to maneuver a wheelchair
through snow is not prevented from using fixed route transit when there
is no snow on the ground. Someone with a cognitive disability may have
learned to take the same bus route to a supported employment job every
day. This individual is able to navigate the system for work purposes
and therefore would not be eligible for paratransit for work trips. But
the individual may be unable to get to other destinations on the bus
system without getting lost, and would be eligible for paratransit for
non-work trips. Someone who normally drives his own car to a rail system
park and ride lot may have a specific impairment related condition
preventing him from getting to the station when his car is in the shop.
A person who can use accessible fixed route service can go to one
destination on an accessible route; another destination would require
the use of an inaccessible route. The individual would be eligible for
the latter but not the former.
    In many cases, though the person is eligible for some trips but not
others, eligibility determinations would not have to be made literally
on a trip-by-trip basis. It may often be possible to establish the
conditions on eligibility as part of the initial eligibility
determination process. Someone with a temperature sensitivity might be
granted seasonal eligibility. Somebody who is able to navigate the
system for work but not non-work trips could have this fact noted in his
or her eligibility documentation. Likewise, someone with a variable
condition (e.g., multiple sclerosis, HIV disease, need for kidney
dialysis) could have their eligibility based on the underlying
condition, with paratransit need for a particular trip dependent on
self-assessment or a set of medical standards (e.g., trip within a
certain amount of time after a dialysis session). On the other hand,
persons in the second eligibility category (people who can use
accessible fixed route service where it exists) would be given service
on the basis of the particular route they would use for a given trip.
    Because entities are not precluded from providing service beyond
that required by the rule, an entity that believes it is too difficult
to administer a program of trip-by-trip eligibility is not required to
do so. Nothing prevents an entity from providing all requested trips to
a person whom the ADA requires to receive service for only some trips.
In this case, if the entity intends to request an undue financial burden
waiver, the entity, as provided in the undue burden provisions of this
rule, must estimate, by a statistically valid technique, the percentage
of its paratransit trips that are mandated by the ADA. Only that
percentage of its total costs will be counted in considering the undue
burden waiver request.
[[Page 570]]
                         Category 1 Eligibility
    The first eligibility category includes, among others, persons with 
mental or visual impairments who, as a result, cannot ``navigate the
system.'' This eligibility category includes people who cannot board,
ride, or disembark from an accessible vehicle ``without the assistance
of another individual.'' This means that, if an individual needs an
attendant to board, ride, or disembark from an accessible fixed route
vehicles (including ``navigating the system''), the individual is
eligible for paratransit. One implication of this language is that an
individual does not lose paratransit eligibility based on ``inability to
navigate the system'' because the individual chooses to travel with a
friend on the paratransit system (even if the friend could help the
person navigate the fixed route system). Eligibility in this category is
based on ability to board, ride, and disembark independently.
    Mobility training (e.g., of persons with mental or visual
impairments) may help to improve the ability of persons to navigate the
system or to get to a bus stop. Someone who is successfully mobility
trained to use the fixed route system for all or some trips need not be
provided paratransit service for those trips. The Department encourages
entities to sponsor such training as a means of assisting individuals to
use fixed route rather than paratransit.
                         Category 2 Eligibility
    The second eligibility criterion is the broadest, with respect to 
persons with mobility impairments, but its impact should be reduced over
time as transit systems become more accessible. This category applies to
persons who could use accessible fixed route transportation, but
accessible transportation is not being used at the time, and on the
route, the persons would travel. This concept is route based, not system
based.
    Speaking first of bus systems, if a person is traveling from Point A
to Point B on route 1, and route 1 is accessible, the person is not
eligible for paratransit for the trip. This is true even though other
portions of the system are still inaccessible. If the person is
traveling from Point A to Point C on route 2, which is not accessible,
the person is eligible for that trip. If the person is traveling from
Point A to Point B on accessible route 1, with a transfer at B to go on
inaccessible route 3 to Point D, then the person is eligible for the
second leg of the trip. (The entity could choose to provide a
paratransit trip from A to D or a paratransit or on-call bus trip from B
to D.)
    For purposes of this standard, we view a route as accessible when
all buses scheduled on the route are accessible. Otherwise, it is
unlikely that an accessible vehicle could be provided ``within a
reasonable period of [a] time'' when the individual wants to travel, as
the provision requires. We recognize that some systems' operations may
not be organized in a way that permits determining whether a given route
is accessible, even though a route-by-route determination appears to be
contemplated by the statute. In such cases, it may be that category 2
eligibility would persist until the entire system was eligible.
    With respect to a rail system, an individual is eligible under this
standard if, on the route or line he or she wants to use, there is not
yet one car per train accessible or if key stations are not yet
accessible. This eligibility remains even if bus systems covering the
area served by the rail system have become 100 percent accessible. This
is necessary because people use rail systems for different kinds of
trips than bus systems. It would often take much more in the way of
time, trouble, and transfers for a person to go on the buses of one or
more transit authorities than to have a direct trip provided by the rail
operator. Since bus route systems are often designed to feed rail
systems rather than duplicate them, it may often be true that ``you
can't get there from here'' relying entirely on bus routes or the
paratransit service area that parallels them.
    If the lift on a vehicle cannot be deployed at a particular stop, an
individual is eligible for paratransit under this category with respect
to the service to the inaccessible stop. If on otherwise accessible
route 1, an individual wants to travel from Point A to Point E, and the
lift cannot be deployed at E, the individual is eligible for paratransit
for the trip. (On-call bus would not work as a mode of providing this
trip, since a bus lift will not deploy at the stop.) This is true even
though service from Point A to all other points on the line is fully
accessible. In this circumstance, the entity should probably think
seriously about working with the local government involved to have the
stop moved or made accessible.
    When we say that a lift cannot be deployed, we mean literally that
the mechanism will not work at the location to permit a wheelchair user
or other person with a disability to disembark or that the lift will be
damaged if it is used there. It is not consistent with the rule for a
transit provider to declare a stop off-limits to someone who uses the
lift while allowing other passengers to use the stop. However, if
temporary conditions not under the operator's control (e.g.,
construction, an accident, a landslide) make it so hazardous for anyone
to disembark that the stop is temporarily out of service for all
passengers may the operator refuse to allow a passenger to disembark
using the lift.
[[Page 571]]
                         Category 3 Eligibility
    The third eligibility criterion concerns individuals who have a 
specific impairment-related condition which prevents them from getting
to or from a stop or station. As noted in the legislative history of the
ADA, this is intended to be a ``very narrow exception'' to the general
rule that difficulty in traveling to or from boarding or disembarking
locations is not a basis for eligibility.
    What is a specific impairment-related condition? The legislative
history mentions four examples: Chronic fatigue, blindness, a lack of
cognitive ability to remember and follow directions, or a special
sensitivity to temperature. Impaired mobility, severe communications
disabilities (e.g., a combination of serious vision and hearing
impairments), cardiopulmonary conditions, or various other serious
health problems may have similar effects. The Department does not
believe that it is appropriate, or even possible, to create an
exhaustive list.
    What the rule uses as an eligibility criterion is not just the
existence of a specific impairment-related condition. To be a basis for
eligibility, the condition must prevent the individual from traveling to
a boarding location or from a disembarking location. The word
``prevent'' is very important. For anyone, going to a bus stop and
waiting for a bus is more difficult and less comfortable than waiting
for a vehicle at one's home. This is likely to be all the more true for
an individual with a disability. But for many persons with disabilities,
in many circumstances, getting to a bus stop is possible. If an
impairment related condition only makes the job of accessing transit
more difficult than it might otherwise be, but does not prevent the
travel, then the person is not eligible.
    For example, in many areas, there are not yet curb cuts. A
wheelchair user can often get around this problem by taking a less
direct route to a destination than an ambulatory person would take. That
involves more time, trouble, and effort than for someone without a
mobility impairment. But the person can still get to the bus stop. On
the basis of these architectural barriers, the person would not be
eligible.
    Entities are cautioned that, particularly in cases involving lack of
curb cuts and other architectural barrier problems, assertions of
eligibility should be given tight scrutiny. Only if it is apparent from
the facts of a particular case that an individual cannot find a
reasonable alternative path to a location should eligibility be granted.
    If we add a foot of snow to the scenario, then the same person
taking the same route may be unable to get to the bus stop. It is not
the snow alone that stops him; it is the interaction of the snow and the
fact that the individual has a specific-impairment related condition
that requires him to push a wheelchair through the snow that prevents
the travel.
    Inevitably, some judgment is required to distinguish between
situations in which travel is prevented and situations in which it is
merely made more difficult. In the Department's view, a case of
``prevented travel'' can be made not only where travel is literally
impossible (e.g., someone cannot find the bus stop, someone cannot push
a wheelchair through the foot of snow or up a steep hill) but also where
the difficulties are so substantial that a reasonable person with the
impairment-related condition in question would be deterred from making
the trip.
    The regulation makes the interaction between an impairment-related
condition and the environmental barrier (whether distance, weather,
terrain, or architectural barriers) the key to eligibility
determinations. This is an individual determination. Depending on the
specifics of their impairment-related condition, one individual may be
able to get from his home to a bus stop under a given set of conditions,
while his next-door neighbor may not.
                               Companions
    The ADA requires entities to provide paratransit to one person 
accompanying the eligible individual, with others served on a space-
available basis. The one individual who is guaranteed space on the
vehicle can be anyone--family member, business associate, friend, date,
etc. The provider cannot limit the eligible individual's choice of type
of companion. The transit authority may require that the eligible
individual reserve a space for the companion when the individual
reserves his or her own ride. This one individual rides even if this
means that there is less room for other eligible individuals. Additional
individuals beyond the first companion are carried only on a space
available basis; that is, they do not displace other ADA paratransit
eligible individuals.
    A personal care attendant (i.e., someone designated or employed
specifically to help the eligible individual meet his or her personal
needs) always may ride with the eligible individual. If there is a
personal care attendant on the trip, the eligible individual may still
bring a companion, plus additional companions on a space available
basis. The entity may require that, in reserving the trip, the eligible
individual reserve the space for the attendant.
    To prevent potential abuse of this provision, the rule provides that
a companion (e.g., friend or family member) does not count as a personal
care attendant unless the eligible individual regularly makes use of a
personal care attendant and the companion is actually acting in that
capacity. As noted under Sec. 37.125, a provider may require that, as
part of the initial eligibility
[[Page 572]]
certification process, an individual indicate whether he or she travels 
with a personal care attendant. If someone does not indicate the use of
an attendant, then any individual accompanying him or her would be
regarded simply as a companion.
    To be viewed as ``accompanying'' the eligible individual, a
companion must have the same origin and destination points as the
eligible individual. In appropriate circumstances, entities may also
wish to provide service to a companion who has either an origin or
destination, but not both, with the eligible individual (e.g., the
individual's date is dropped off at her own residence on the return trip
from a concert).
           Section 37.125 ADA Paratransit Eligibility--Process
    This section requires an eligibilty process to be established by 
each operator of complementary paratransit. The details of the process
are to be devised through the planning and public participation process
of this subpart. The process may not impose unreasonable administrative
burdens on applicants, and, since it is part of the entity's
nondiscrimination obligations, may not involve ``user fees'' or
application fees to the applicant.
    The process may include functional criteria related to the
substantive eligibility criteria of Sec. 37.123 and, where appropriate,
functional evaluation or testing of applicants. The substantive
eligibility process is not aimed at making a medical or diagnostic
determination. While evaluation by a physician (or professionals in
rehabilitation or other relevant fields) may be used as part of the
process, a diagnosis of a disability is not dispositive. What is needed
is a determination of whether, as a practical matter, the individual can
use fixed route transit in his or her own circumstances. That is a
transportation decision primarily, not a medical decision.
    The goal of the process is to ensure that only people who meet the
regulatory criteria, strictly applied, are regarded as ADA paratransit
eligible. The Department recognizes that transit entities may wish to
provide service to other persons, which is not prohibited by this rule.
However, the eligibility process should clearly distinguish those
persons who are ADA eligible from those who are provided service on
other grounds. For example, eligibility documentation must clearly state
whether someone is ADA paratransit eligible or eligible on some other
basis.
    Often, people tend to think of paratransit exclusively in terms of
people with mobility impairments. Under the ADA, this is not accurate.
Persons with visual impairments may be eligible under either the first
or third eligibility categories. To accommodate them, all documents
concerning eligibility must be made available in one or more accessible
formats, on request. Accessible formats include computer disks, braille
documents, audio cassettes, and large print documents. A document does
not necessarily need to be made available in the format a requester
prefers, but it does have to be made available in a format the person
can use. There is no use giving a computer disk to someone who does not
have a computer, for instance, or a braille document to a person who
does not read braille.
    When a person applies for eligibility, the entity will provide all
the needed forms and instructions. These forms and instructions may
include a declaration of whether the individual travels with a personal
care attendant. The entity may make further inquiries concerning such a
declaration (e.g., with respect to the individual's actual need for a
personal care attendant).
    When the application process is complete--all necessary actions by
the applicant taken--the entity should process the application in 21
days. If it is unable to do so, it must begin to provide service to the
applicant on the 22nd day, as if the application had been granted.
Service may be terminated only if and when the entity denies the
application. All determinations shall be in writing; in the case of a
denial, reasons must be specified. The reasons must specifically relate
the evidence in the matter to the eligibility criteria of this rule and
of the entity's process. A mere recital that the applicant can use fixed
route transit is not sufficient.
    For people granted eligibility, the documentation of eligibility
shall include at least the following information:
--The individual's name
--The name of the transit provider
--The telephone number of the entity's paratransit coordinator
--An expiration date for eligibility
--Any conditions or limitations on the individual's eligibility,
including the use of a personal care attendant.
    The last point refers to the situation in which a person is eligible 
for some trips but not others. Or if the traveler is authorized to have
a personal care attendant ride free of charge. For example, the
documentation may say that the individual is eligible only when the
temperature falls below a certain point, or when the individual is going
to a destination not on an accessible bus route, or for non-work trips,
etc.
    As the mention of an expiration date implies, certification is not
forever. The entity may recertify eligibility at reasonable intervals to
make sure that changed circumstances have not invalidated or changed the
individual's eligibility. In the Department's view, a reasonable
interval for recertification is probably between one and three
[[Page 573]]
years. Less than one year would probably be too burdensome for 
consumers; over three years would begin to lose the point of doing
recertifications. The recertification interval should be stated in the
entity's plan. Of course, a user of the service can apply to modify
conditions on his or her eligibility at any time.
    The administrative appeal process is intended to give applicants who
have been denied eligibility the opportunity to have their cases heard
by some official other than the one who turned them down in the first
place. In order to have appropriate separation of functions--a key
element of administrative due process--not only must the same person not
decide the case on appeal, but that person, to the extent practicable,
should not have been involved in the first decision (e.g., as a member
of the same office, or a supervisor or subordinate of the original
decisionmaker). When, as in the case of a small transit operator, this
degree of separation is not feasible, the second decisionmaker should at
least be ``bubbled'' with respect to the original decision (i.e., not
have participated in the original decision or discussed it with the
original decisionmaker). In addition, there must be an opportunity to be
heard in person as well as the chance to present written evidence and
arguments. All appeals decisions must be in writing, stating the reasons
for the decision.
    To prevent the filing of stale claims, the entity may establish a 60
day ``statute of limitations'' on filing of appeals, the time starting
to run on the date the individual is notified on the negative initial
decision. After the appeals process has been completed (i.e., the
hearing and/or written submission completed), the entity should make a
decision within 30 days. If it does not, the individual must be provided
service beginning the 31st day, until and unless an adverse decision is
rendered on his or her appeal.
    Under the eligibility criteria of the rule, an individual has a
right to paratransit if he or she meets the eligibility criteria. As
noted in the discussion of the nondiscrimination section, an entity may
refuse service to anindividual with a disability who engages in violent,
seriously disruptive, or illegal conduct, using the same standards for
exclusion that would apply to any other person who acted in such an
inappropriate way.
    The rule also allows an entity to establish a process to suspend,
for a reasonable period of time, the provision of paratransit service to
an ADA eligible person who establishes a pattern or practice of missing
scheduled trips. The purpose of this process would be to deter or deal
with chronic ``no-shows.'' The sanction system--articulated criteria for
the imposition of sanctions, length of suspension periods, details of
the administrative process, etc.--would be developed through the public
planning and participation process for the entity's paratransit plan,
and the result reflected in the plan submission to FTA.
    It is very important to note that sanctions could be imposed only
for a ``pattern or practice'' of missed trips. A pattern or practice
involves intentional, repeated or regular actions, not isolated,
accidental, or singular incidents. Moreover, only actions within the
control of the individual count as part of a pattern or practice. Missed
trips due to operator error are not attributable to the individual
passenger for this purpose. If the vehicle arrives substantially after
the scheduled pickup time, and the passenger has given up on the vehicle
and taken a taxi or gone down the street to talk to a neighbor, that is
not a missed trip attributable to the passenger. If the vehicle does not
arrive at all, or is sent to the wrong address, or to the wrong entrance
to a building, that is not a missed trip attributable to the passenger.
There may be other circumstances beyond the individual's control (e.g.,
a sudden turn for the worse in someone with a variable condition, a
sudden family emergency) that make it impracticable for the individual
to travel at the scheduled time and also for the individual to notify
the entity in time to cancel the trip before the vehicle comes. Such
circumstances also would not form part of a sanctionable pattern or
practice.
    Once an entity has certified someone as eligible, the individual's
eligibility takes on the coloration of a property right. (This is not
merely a theoretical statement. If one depends on transportation one has
been found eligible for to get to a job, and the eligibility is removed,
one may lose the job. The same can be said for access to medical care or
other important services.) Consequently, before eligibility may be
removed ``for cause'' under this provision, the entity must provide
administrative due process to the individual.
    If the entity proposes to impose sanctions on someone, it must first
notify the individual in writing (using accessible formats where
necessary). The notice must specify the basis of the proposed action
(e.g., Mr. Smith scheduled trips for 8 a.m. on May 15, 2 p.m. on June 3,
9 a.m. on June 21, and 9:20 p.m. on July 10, and on each occasion the
vehicle appeared at the scheduled time and Mr. Smith was nowhere to be
found) and set forth the proposed sanction (e.g., Mr. Smith would not
receive service for 15 days).
    The entity would provide the individual an opportunity to be heard
(i.e., an in-person informal hearing before a decisionmaker) as well as
to present written and oral information and arguments. All relevant
entity records and personnel would be made available to the individual,
and other persons could testify. It is likely that, in many cases, an
important factual issue would be whether a missed trip was the
responsibility
[[Page 574]]
of the provider or the passenger, and the testimony of other persons and 
the provider's records or personnel are likely to be relevant in
deciding this issue. While the hearing is intended to be informal, the
individual could bring a representative (e.g., someone from an advocacy
organization, an attorney).
    The individual may waive the hearing and proceed on the basis of
written presentations. If the individual does not respond to the notice
within a reasonable time, the entity may make, in effect, a default
finding and impose sanctions. If there is a hearing, and the individual
needs paratransit service to attend the hearing, the entity must provide
it. We would emphasize that, prior to a finding against the individual
after this due process procedure, the individual must continue to
receive service. The entity cannot suspend service while the matter is
pending.
    The entity must notify the individual in writing about the decision,
the reasons for it, and the sanctions imposed, if any. Again, this
information would be made available in accessible formats. In the case
of a decision adverse to the individual, the administrative appeals
process of this section would apply. The sanction would be stayed
pending an appeal.
    There are means other than sanctions, however, by which a transit
provider can deal with a ``no-show'' problem in its system. Providers
who use ``real time scheduling'' report that this technique is very
effective in reducing no-shows and cancellations, and increasing the mix
of real time scheduling in a system can probably be of benefit in this
area. Calling the customer to reconfirm a reasonable time before pickup
can head off some problems, as can educating consumers to call with
cancellations ahead of time. Training of dispatch and operator personnel
can help to avoid miscommunications that lead to missed trips.
          Section 37.127 Complementary Paratransit for Visitors
    This section requires each entity having a complementary paratransit 
system to provide service to visitors from out of town on the same basis
as it is provided to local residents. By ``on the same basis,'' we mean
under all the same conditions, service criteria, etc., without
distinction. For the period of a visit, the visitor is treated exactly
like an eligible local user, without any higher priority being given to
either.
    A visitor is defined as someone who does not reside in the
jurisdiction or jurisdictions served by the public entity or other
public entities with which it coordinates paratransit service. For
example, suppose a five-county metropolitan area provides coordinated
paratransit service under a joint plan. A resident of any of the five
counties would not be regarded as a visitor in any of them. Note that
the rule talks in terms of ``jurisdiction'' rather than ``service
area.'' If an individual lives in XYZ County, but outside the fixed
route service area of that county's transit provider, the individual is
still not a visitor for purposes of paratransit in PQR County, if PQR is
one of the counties with which XYZ provides coordinated paratransit
service.
    A visitor can become eligible in one of two ways. The first is to
present documentation from his or her ``home'' jurisdiction's
paratransit system. The local provider will give ``full faith and
credit'' to the ID card or other documentation from the other entity. If
the individual has no such documentation, the local provider may require
the provision of proof of visitor status (i.e., proof of residence
somewhere else) and, if the individual's disability is not apparent,
proof of the disability (e.g., a letter from a doctor or rehabilitation
professional). Once this documentation is presented and is satisfactory,
the local provider will make service available on the basis of the
individual's statement that he or she is unable to use the fixed route
transit system.
    The local provider need serve someone based on visitor eligibility
for no more than 21 days. After that, the individual is treated the same
as a local person for eligibility purposes. This is true whether the 21
days are consecutive or parceled out over several shorter visits. The
local provider may require the erstwhile visitor to apply for
eligibility in the usual local manner. A visitor who expects to be
around longer than 21 days should apply for regular eligibility as soon
as he arrives. The same approach may be used for a service of requested
visits totaling 21 days or more in a relating compact period of time.
Preferably, this application process should be arranged before the
visitor arrives, by letter, telephone or fax, so that a complete
application can be processed expeditiously.
                     Section 37.129 Types of Service
    The basic mode of service for complementary paratransit is demand 
responsive, origin-to-destination service. This service may be provided
for persons in any one of the three eligibility categories, and must
always be provided to persons in the first category (e.g., people who
cannot navigate the system). The local planning process should decide
whether, or in what circumstances, this service is to be provided as
door-to-door or curb-to-curb service.
    For persons in the second eligibility category (e.g., persons who
can use accessible buses, but do not have an accessible bus route
available to take them to their destination), origin-to-destination
service can be used. Alternatively, the entity can provide either of two
other forms of service. One is on-call bus, in which the individual
calls
[[Page 575]]
the provider and arranges for one or more accessible buses to arrive on 
the routes he needs to use at the appropriate time. On-call bus service
must meet all the service criteria of Sec. 37.131, except that on-call
buses run only on fixed routes and the fare charged can be only the
fixed route fare that anyone pays on the bus (including discounts).
    The second option is ``feeder paratransit'' to an accessible fixed
route that will take the individual to his or her destination. Feeder
paratransit, again, would have to meet all the criteria of Sec. 37.131.
With respect to fares, the paratransit fare could be charged, but the
individual would not be double charged for the trip. That is, having
paid the paratransit fare, the transfer to the fixed route would be
free.
    For persons in the third eligibility category (e.g., persons who can
use fixed route transit but who, because of a specific impairment-
related condition, cannot get to or from a stop), the ``feeder
paratransit'' option, under the conditions outlined above, is available.
For some trips, it might be necessary to arrange for feeder service at
both ends of the fixed route trip. Given the more complicated logistics
of such arrangements, and the potential for a mistake that would
seriously inconvenience the passenger, the transit provider should
consider carefully whether such a ``double feeder'' system, while
permissible, is truly workable in its system (as opposed to a simpler
system that used feeder service only at one end of a trip when the bus
let the person off at a place from which he or she could independently
get to the destination). There may be some situations in which origin to
destination service is easier and less expensive.
 Section 37.131 Service Criteria for Complementary Paratransit Service 
                                  Area
    The basic bus system service area is a corridor with a width of \3/
4\ of a mile on each side of each fixed route. At the end of a route,
there is a semicircular ``cap'' on the corridor, consisting of a three-
quarter mile radius from the end point of the route to the parallel
sides of the corridor.
[GRAPHIC] [TIFF OMITTED]
    Complementary paratransit must provide service to any origin or 
destination point within a corridor fitting this description around any
route in the bus system. Note that this does not say that an eligible
user must live within a corridor in order to be eligible. If an
individual lives outside the corridor, and can find a way of getting to
a pickup point within the corridor, the service must pick him up there.
The same holds true at the destination end of the trip.
    Another concept involved in this service criterion is the core
service area. Imagine a bus route map of a typical city. Color the bus
routes and their corridors blue, against the white outline map. In the
densely populated areas of the city, the routes (which, with their
corridors attached, cut 1\1/2\ mile swaths) merge together into a solid
blue mass. There are few, if any, white spots left uncovered, and they
are likely to be very small. Paratransit would serve all origins and
destinations in the solid blue mass.
    But what of the little white spots surrounded by various bus
corridors? Because it would make sense to avoid providing service to
such small isolated areas, the rule requires paratransit service there
as well. So color them in too.
    Outside the core area, though, as bus routes follow radial arteries
into the suburbs and exurbs (we know real bus route maps are more
complicated than this, but we simplify for purposes of illustration),
there are increasingly wide white areas between the blue corridors,
which may have corridors on either side of them but are not small areas
completely surrounded by corridors. These white spaces are not part of
the paratransit service area and the entity does not have to
[[Page 576]]
serve origins and destinations there. However, if, through the planning 
process, the entity wants to enlarge the width of one or more of the
blue corridors from the \3/4\ of a mile width, it can do so, to a
maximum of 1\1/2\ miles on each side of a route. The cost of service
provided within such an expanded corridor can be counted in connection
with an undue financial burden waiver request.
    There may be a part of the service area where part of one of the
corridors overlaps a political boundary, resulting in a requirement to
serve origins and destinations in a neighboring jurisdiction which the
entity lacks legal authority to service. The entity is not required to
serve such origins and destinations, even though the area on the other
side of the political boundary is within a corridor. This exception to
the service area criterion d when there is a legal bar to the entity
providing service on the other side of the boundary.
    The rule requires, in this situation, that the entity take all
practicable steps to get around the problem so that it can provide
service throughout its service area. The entity should work with the
state or local governments involved, via coordination plans, reciprocity
agreements, memoranda of understanding or other means to prevent
political boundaries from becoming barriers to the travel of individuals
with disabilities.
    The definition of the service area for rail systems is somewhat
different, though many of the same concepts apply.
[GRAPHIC] [TIFF OMITTED]
    Around each station on the line (whether or not a key station), the 
entity would draw a circle with a radius of \3/4\ mile. Some circles may
touch or overlap. The series of circles is the rail system's service
area. (We recognize that, in systems where stations are close together,
this could result in a service area that approached being a corridor
like that of a bus line.) The rail system would provide paratransit
service from any point in one circle to any point in any other circle.
The entity would not have to provide service to two points within the
same circle, since a trip between two points in the vicinity of the same
station is not a trip that typically would be taken by train. Nor would
the entity have to provide service to spaces between the circles. For
example, a train trip would not get close to point x; one would have to
take a bus or other mode of transportation to get from station E or F to
point x. A paratransit system comparable to the rail service area would
not be required to take someone there either.
    Rail systems typically provide trips that are not made, or cannot be
made conveniently, on bus systems. For example, many rail systems cross
jurisdictional boundaries that bus systems often do not. One can travel
from Station A to a relatively distant Station E on a rail system in a
single trip, while a bus trip between the same points, if possible at
all, may involve a number of indirect routings and transfers, on two bus
systems that may not interface especially well.
    Rail operators have an obligation to provide paratransit equivalents
of trips between circles to persons who cannot use fixed route rail
systems because they cannot navigate the system, because key stations or
trains
[[Page 577]]
are not yet accessible, or because they cannot access stations from 
points within the circles because of a specific impairment-related
condition. For individuals who are eligible in category 2 because they
need an accessible key station to use the system, the paratransit
obligation extends only to transportation among ``circles'' centered on
designated key stations (since, even when the key station plan is fully
implemented, these individuals will be unable to use non-key stations).
    It is not sufficient for a rail operator to refer persons with
disabilities to an accessible bus system in the area. The obligation to
provide paratransit for a rail system is independent of the operations
of any bus system serving the same area, whether operated by the same
entity that operates the rail system or a different entity. Obviously,
it will be advantageous for bus and rail systems to coordinate their
paratransit efforts, but a coordinated system would have to ensure
coverage of trips comparable to rail trips that could not conveniently
be taken on the fixed route bus system.
                              Response Time
    Under this provision, an entity must make its reservation service 
available during the hours its administrative offices are open. If those
offices are open 9 to 5, those are the hours during which the
reservations service must be open, even if the entity's transit service
operated 6 a.m. to midnight. On days prior to a service day on which the
administrative offices are not open at all (e.g., a Sunday prior to a
Monday service day), the reservation service would also be open 9 to 5.
Note that the reservation service on any day does not have to be
provided directly by a ``real person.'' An answering machine or other
technology can suffice.
    Any caller reaching the reservation service during the 9 to 5
period, in this example, could reserve service for any time during the
next 6 a.m. to 12 midnight service day. This is the difference between
``next day scheduling'' and a system involving a 24-hour prior
reservation requirement, in which a caller would have to reserve a trip
at 7 a.m. today if he or she wanted to travel at 7 a.m. tomorrow. The
latter approach is not adequate under this rule.
    The entity may use real time scheduling for all or part of its
service. Like the Moliere character who spoke prose all his life without
knowing it, many entities may already be using some real time scheduling
(e.g., for return trips which are scheduled on a when-needed basis, as
opposed to in advance). A number of transit providers who have used real
time scheduling believe that it is more efficient on a per-trip basis
and reduces cancellations and no-shows significantly. We encourage
entities to consider this form of service.
    Sometimes users want to schedule service well in advance, to be sure
of traveling when they want to. The rule tells providers to permit
reservations to be made as much as 14 days in advance. In addition,
though an entity may negotiate with a user to adjust pickup and return
trip times to make scheduling more efficient, the entity cannot insist
on scheduling a trip more than one hour earlier or later than the
individual desires to travel. Any greater deviation from desired trip
would exceed the bounds of comparability.
                                  Fares
    To calculate the proper paratransit fare, the entity would determine 
the route(s) that an individual would take to get from his or her origin
to his or her destination on the fixed route system. At the time of day
the person was traveling, what is the fare for that trip on those
routes? Applicable charges like transfer fees or premium service charges
may be added to the amount, but discounts (e.g., the half-fare discount
for off-peak fixed route travel by elderly and handicapped persons)
would not be subtracted. The transit provider could charge up to twice
the resulting amount for the paratransit trip.
    The mode through which paratransit is provided does not change the
method of calculation. For example, if paratransit is provided via user
side subsidy taxi service rather than publicly operated dial-a-ride van
service, the cost to the user could still be only twice the applicable
fixed route fare. The system operates the same regardless of whether the
paratransit trip is being provided in place of a bus or a rail trip the
user cannot make on the fixed route system. Where bus and rail systems
are run by the same provider (or where the same bus provider runs
parallel local and express buses along the same route), the comparison
would be made to the mode on which a typical fixed route user would make
the particular trip, based on schedule, length, convenience, avoidance
of transfers, etc.
    Companions are charged the same fare as the eligible individual they
are accompanying. Personal care attendants ride free.
    One exception to the fare requirement is made for social service
agency (or other organization-sponsored) trips. This exception, which
allows the transit provider to negotiate a price with the agency that is
more than twice the relevant fixed route fare, applies to ``agency
trips,'' by which we mean trips which are guaranteed to the agency for
its use. That is, if an agency wants 12 slots for a trip to the mall on
Saturday for clients with disabilities, the agency makes the reservation
for the trips in its name, the agency will be paying for the
transportation, and the trips are reserved to the agency, for whichever
12 people the agency designates, the provider may then negotiate any
price it
[[Page 578]]
can with the agency for the trips. We distinguish this situation from 
one in which an agency employee, as a service, calls and makes an
individual reservation in the name of a client, where the client will be
paying for the transportation.
            Restrictions and Priorities Based on Trip Purpose
    This is a simple and straightforward requirement. There can be no 
restrictions or priorities based on trip purpose in a comparable
complementary paratransit system. When a user reserves a trip, the
entity will need to know the origin, destination, time of travel, and
how many people are traveling. The entity does not need to know why the
person is traveling, and should not even ask.
                        Hours and Days of Service
    This criterion says simply that if a person can travel to a given 
destination using a given fixed route at a given time of day, an ADA
paratransit eligible person must be able to travel to that same
destination on paratransit at that time of day. This criterion
recognizes that the shape of the service area can change. Late at night,
for example, it is common for certain routes not to be run. Those
routes, and their paratransit corridors, do not need to be served with
paratransit when the fixed route system is not running on them. One
couldn't get to destinations in that corridor by fixed route at those
times, so paratransit service is not necessary either.
    It should be pointed out that service during low-demand times need
not be by the same paratransit mode as during higher usage periods. For
example, if a provider uses its own paratransit vans during high demand
periods, it could use a private contractor or user-side subsidy provider
during low demand periods. This would presumably be a more efficient way
of providing late night service. A call-forwarding device for
communication with the auxiliary carrier during these low demand times
would be perfectly acceptable, and could reduce administrative costs.
                          Capacity Constraints
    This provision specifically prohibits two common mechanisms that 
limit use of a paratransit system so as to constrain demand on its
capacity. The first is a waiting list. Tyically, a waiting list involves
a determination by a provider that it can provide service only to a
given number of eligible persons. Other eligible persons are not able to
receive service until one of the people being served moves away or
otherwise no longer uses the service. Then the persons on the waiting
list can move up. The process is analogous to the wait that persons in
some cities have to endure to be able to buy season tickets to a sold-
out slate of professional football games.
    The second mechanism specifically mentioned is a number limit on the
trips a passenger can take in a given period of time. It is a kind of
rationing in which, for example, if one has taken his quota of 30 trips
this month, he cannot take further trips for the rest of the month.
    In addition, this paragraph prohibits any operational pattern or
practice that significantly limits the availability of service of ADA
paratransit eligible persons. As discussed under Sec. 37.125 in the
context of missed trips by passengers, a ``pattern or practice''
involves, regular, or repeated actions, not isolated, accidental, or
singular incidents. A missed trip, late arrival, or trip denial now and
then does not trigger this provision.
    Operational problems outside the control of the entity do not count
as part of a pattern or practice under this provision. For example, if
the vehicle has an accident on the way to pick up a passenger, the late
arrival would not count as part of a pattern or practice. If something
that could not have been anticipated at the time the trip was scheduled
(e.g., a snowstorm, an accident or hazardous materials incident that
traps the paratransit vehicle, like all traffic on a certain highway,
for hours), the resulting missed trip would not count as part of a
pattern or practice. On the other hand, if the entity regularly does not
maintain its vehicles well, such that frequent mechanical breakdowns
result in missed trips or late arrivals, a pattern or practice may
exist. This is also true in a situation in which scheduling practices
fail to take into account regularly occurring traffic conditions (e.g.,
rush hour traffic jams), resulting in frequent late arrivals.
    The rule mentions three specific examples of operational patterns or
practices that would violate this provision. The first is a pattern or
practice of substantial numbers of significantly untimely pickups
(either for initial or return trips). To violate this provision, there
must be both a substantial number of late arrivals and the late arrivals
in question must be significant in length. For example, a DOT Inspector
General's (IG) report on one city's paratransit system disclosed that
around 30 percent of trips were between one and five hours late. Such a
situation would trigger this provision. On the other hand, only a few
instances of trips one to five hours late, or many instances of trips a
few minutes late, would not trigger this provision.
    The second example is substantial numbers of trip denials or missed
trips. For example, if on a regular basis the reservation phone lines
open at 5 a.m. and callers after 7 a.m. are all told that they cannot
travel, or the phone lines shut down after 7 a.m. and a recorded message
says to call back the next
[[Page 579]]
day, or the phone lines are always so busy that no one can get through, 
this provision would be triggered. (Practices of this kind would
probably violate the response time criterion as well.) Also, if, on a
regular basis, the entity misses a substantial number of trips (e.g., a
trip is scheduled, the passenger is waiting, but the vehicle never
comes, goes to the wrong address, is extremely late, etc.), it would
violate this provision.
    The third example is substantial numbers of trips with excessive
trip lengths. Since paratransit is a shared ride service, paratransit
rides between Point A and Point B will usually take longer, and involve
more intermediate stops, than a taxi ride between the same two points.
However, when the number of intermediate stops and the total trip time
for a given passenger grows so large as to make use of the system
prohibitively inconvenient, then this provision would be triggered. For
example, the IG report referred to above mentioned a situation in which
9 percent of riders had one way trips averaging between two and four
hours, with an average of 16 intermediate stops. Such a situation would
probably trigger this provision.
    Though these three examples probably cover the most frequently cited
problems in paratransit operations that directly or indirectly limit the
provision of service that is theoretically available to eligible
persons, the list is not exhaustive. Other patterns or practices could
trigger this provision. For example, the Department has heard about a
situation in which an entity's paratransit contractor was paid on a per-
trip basis, regardless of the length of the trip. The contractor
therefore had an economic incentive to provide as many trips as
possible. As a result, the contractor accepted short trips and routinely
denied longer trips. This would be a pattern or practice contrary to
this provision (and contrary to the service area provision as well).
                           Additional Service
    This provision emphasizes that entities may go beyond the 
requirements of this section in providing service to ADA paratransit
individuals. For example, no one is precluded from offering service in a
larger service area, during greater hours than the fixed route system,
or without charge. However, costs of such additional service do not
count with respect to undue financial burden waiver requests. Where a
service criterion itself incorporates a range of actions the entity may
take (e.g., providing wide corridors outside the urban core, using real
time scheduling), however, costs of providing that optional service may
be counted for undue financial burden waiver request purposes.
                   Section 37.133 Subscription Service
    As part of its paratransit service, an entity may include a 
subscription service component. However, at any given time of day, this
component may not absorb more than 50 percent of available capacity on
the total system. For example, if, at 8 a.m., the system can provide 400
trips, no more than 200 of these can be subscription trips.
    The one exception to this rule would occur in a situation in which
there is excess non-subscription capacity available. For example, if
over a long enough period of time to establish a pattern, there were
only 150 non-subscription trips requested at 8 a.m., the provider could
begin to provide 250 subscription trips at that time. Subsequently, if
non-subscription demand increased over a period of time, such that the
50 trips were needed to satisfy a regular non-subscription demand at
that time, and overall system capacity had not increased, the 50 trips
would have to be returned to the non-subscription category. During times
of high subscription demand, entities could use the trip time
negotiation discretion of Sec. 37.131(c)(2) to shift some trips to
other times.
    Because subscription service is a limited subcomponent of
paratransit service, the rule permits restrictions to be imposed on its
use that could not be imposed elsewhere. There may be a waiting list for
provision of subscription service or the use of other capacity
constraints. Also, there may be restrictions or priorities based on trip
purpose. For example, subscription service under peak work trip times
could be limited to work trips. We emphasize that these limitations
apply only to subscription service. It is acceptable for a provider to
put a person on a waiting list for access to subscription service at 8
a.m. for work trips; the same person could not be wait-listed for access
to paratransit service in general.
             Section 37.135 Submission of Paratransit Plans
    This section contains the general requirements concerning the 
submission of paratransit plans. Each public entity operating fixed
route service is required to develop and submit a plan for paratransit
service. Where you send your plans depends on the type of entity you
are. There are two categories of entities which should submit their
plans to states--(1) FTA recipients and (2) entities who are
administered by the state on behalf of FTA.
    These FTA grantees submit their plans to the states because the
agency would like the benefit of the states' expertise before final
review. The states' role is as a commenter, not as a reviewer.
    This section also specifies annual progress reports concerning the
meeting of previously approved milestones, any slippage (with the
reasons for it and plans to catch up), and any
[[Page 580]]
significant changes in the operator's environment, such as the 
withdrawal from the marketplace of a private paratransit provider or
whose service the entity has relied upon to provide part of its
paratransit service.
    Paragraph (d) of this section specifies a maximum time period for
the phase-in of the implementation of paratransit plans. The Department
recognizes that it is not reasonable to expect paratransit systems to
spring into existence fully formed, like Athena from the head of Zeus.
Under this paragraph, all entities must be in full compliance with all
paratransit provisions by January 26, 1997, unless the entity has
received a waiver from FTA based on undue financial burden (which
applies only to the service criteria of Sec. 37.131, not to eligibility
requirements or other paratransit provisions).
    While the rule assumes that most entities will take a year to fully
implement these provisions, longer than a year requires the paratransit
plans to submit milestones that are susceptible to objective
verification. Not all plans will be approved with a five-year lead-in
period. Consistent with the proposed rule, the Department intends to
look at each plan individually to see what is required for
implementation in each case. DOT may approve only a shorter phase-in
period in a given case.
               Section 37.137 Paratransit Plan Development
    Section 35.137 establishes three principal requirements in the 
development of paratransit plans.
    First is the requirement to survey existing paratransit services
within the service area. This is required by section 223(c)(8) of the
ADA. While the ADA falls short of explicitly requiring coordination,
clearly this is one of the goals. The purpose of the survey is to
determine what is being provided already, so that a transit provider can
accurately assess what additional service is needed to meet the service
criteria for comparable paratransit service. The plan does not have to
discuss private paratransit providers whose services will not be used to
help meet paratransit requirements under this rule. However, the public
entity will need to know specifically what services are being provided
by whom if the entity is to count the transportation toward the overall
need.
    Since the public entity is required to provide paratransit to all
ADA paratransit eligible individuals, there is some concern that
currently provided service may be cut back or eliminated. It is possible
that this may happen and such action would have a negative effect on
transportation provided to persons with disabilities in general. The
Department urges each entity required to submit a plan to work with
current providers of transportation, not only to determine what
transportation services they provide, but also to continue to provide
service into the foreseeable future.
    Second, Sec. 37.137 specifies requirements for public
participation. First, the entity must perform outreach, to ensure that a
wide range of persons anticipated to use the paratransit service know
about and have the opportunity to participate in the development of the
plan. Not only must the entity identify who these individuals or groups
are, the entity also must contact the people at an early stage in the
development process.
    The other public participation requirements are straightforward.
There must be a public hearing and an opportunity to comment. The
hearing must be accessible to those with disabilities, and notice of the
hearing must be accessible as well. There is a special efforts test
identified in this paragraph for comments concerning a multi-year phase-
in of a paratransit plan.
    The final general requirement of the section specifies that efforts
at public participation must be made permanent through some mechanism
that provides for participation in all phases of paratransit plan
development and submission. The Department is not requiring that there
be an advisory committee established, although this is one method of
institutionalizing participation. The Department is not as interested in
the specific structure used to ensure public participation as we are
interested in the effectiveness of the effort.
    The Department believes that public participation is a key element
in the effective implementation of the ADA. The ADA is an opportunity to
develop programs that will ensure the integration of all persons into
not just the transportation system of America, but all of the
opportunities transportation makes possible. This opportunity is not
without tremendous challenges to the transit providers. It is only
through dialogue, over the long term, that usable, possible plans can be
developed and implemented.
                      Section 37.139 Plan Contents
    This section contains substantive categories of information to be 
contained in the paratransit plan: Information on current and changing
fixed route service; inventory of existing paratransit service;
discussion of the discrepancies between existing paratransit and what is
required under this regulation; a discussion of the public participation
requirements and how they have been met; the plan for paratransit
service; the budget for paratransit services; efforts to coordinate with
other transportation providers; a description of the process in place or
to be used to register ADA paratransit eligible individuals; a
description of the documentation provided to each individual verifying
eligibility; and a request for a waiver based on undue financial burden,
if
[[Page 581]]
applicable. The final rule contains a reorganized and slightly expanded 
section on plan contents, reflecting requests to be more explicit,
rather than less explicit.
    The list of required elements is the same for all entities required
to submit paratransit plans. There is no document length requirement,
however. Each entity (or group plan) is unique and we expect the plans
to reflect this. While we would like the plan elements presented in the
order listed in this section, the contents most likely will vary
greatly, depending on the size, geographic area, budget, complexity of
issues, etc. of the particular submitting agency.
    This section and Sec. 37.139 provide for a maximum phase-in period
of five years, with an assumed one-year phase-in for all paratransit
programs. (The required budget has been changed to five years as well.)
The Department has established a maximum five-year phase-in in the
belief that not all systems will require that long, but that some,
particularly those which had chosen to meet compliance with section 504
requirements with accessible fixed route service, may indeed need five
years.
    We are confident that, through the public participation process,
entities can develop a realistic plan for full compliance with the ADA.
To help ensure this, the paratransit plan contents section now requires
that any plan which projects full compliance after January 26, 1993 must
include milestones which can be measured and which result in steady
progress toward full compliance. For example, it is possible that the
first part of year one is used to ensure comprehensive registration of
all eligible persons with disabilities, training of transit provider
staffs and the development and dissemination of information to users and
potential users in accessible formats and some modest increase in
paratransit service is provided. A plan would not be permitted to
indicate that no activity was possible in the first year, but
proportionately more progress could be planned for later years than for
the first year. Implementation must begin in January 1992.
    Each plan, including its proposed phase-in period, will be the
subject of examination by FTA. Not all providers who request a five-year
phase-in will receive approval for a five-year phase-in. The plan must
be careful, therefore, to explain what current services are, what the
projections are, and what methods are in place to determine and provide
accountability for progress toward full compliance.
    We have been asked for assistance in assessing what the demand for
paratransit service will be. FTA's ADA Paratransit Manual provides
detailed assistance in this and many other areas of the plan development
process.
    The ADA itself contained a figure of 43 million persons with
disabilities. It should be pointed out that many of these may not
necessarily be eligible for ADA paratransit service. The Department's
regulatory impact analysis discussing the probable costs involved in
implementing this rule places the possible percentage of population who
would be eligible for paratransit service at between 1.4 and 1.9
percent. This figure can vary depending on the type and variety of
services you have available, or on such things as climate, proximity to
medical care, family, etc. that a person with a disability may need.
Clearly estimating demand is one of the most critical elements in the
plan, since it will be used to make decisions about all of the various
service criteria.
    Section 37.139 contains a new paragraph (j), spelling out in more
detail requirements related to the annual submission of plans. Since
there is now the possibility for five-year phase-ins, the annual plan
demonstrates the progress made to date, and explains any delays.
        Section 37.141 Requirements If a Joint Plan is Submitted
    The Department believes that, particularly in large, multi-provider 
regions, a coordinated regional paratransit plan and system are
extremely important. Such coordination can do much to ensure that the
most comprehensive transportation can be provided with the most
efficient use of available resources. We recognize that the effort of
putting together such a coordinated system can be a lengthy one. This
section is intended to facilitate the process of forming such a
coordinated system.
    If a number of entities wish to submit a joint plan for a
coordinated system, they must, like other entities, submit a document by
January 26, 1992. At a minimum, this document must include the
following:
    (1) A general statement that the participating entities intend to
file a joint coordinated plan;
    (2) A certification from each participating entity that it is
committed to providing paratransit as a part of a coordinated plan;
    (3) A certification from each participating entity that it will
maintain at least current levels of paratransit service until the
coordinated paratransit service called for by the joint plan is
implemented;
    (4) As many elements of the plan as possible.
    These provisions ensure that significant planning will precede, and
plan implementation will begin by, January 26, 1992, without precluding
entities from cooperating because it was not possible to complete
coordinating different public entities by that date. The entities
involved in a joint plan are required to submit all elements of their
plan by July 26, 1992.
[[Page 582]]
    The final provision in the section notes that an entity may later 
join a coordinated plan, even if it has filed its own plan on January
26, 1992. An entity must submit its own plan by January 26, 1992, if it
has not provided a certification of participation in a joint plan.). In
this case, the entity must provide the assurances and certifications
required of all of the other participating entities.
    The Department fully expects that many jurisdictions filing joint
plans will be able to do so by January 26, 1992. For those who cannot,
the regulatory provision ensures that there will be no decrease in
paratransit service. Further, since we anticipate coordinated service
areas to provide more effective service, complete implementation of a
joint plan could be more rapid than if each entity was providing service
on its own.
    Entities submitting a joint plan do not have any longer than any
other entities to fully implement complementary paratransit service. In
any case, all plans (joint or single) must be fully implemented by
January 26, 1997, absent a waiver for undue financial burden (which
would, in the case of a joint plan, be considered on a joint basis).
             Section 37.143 Paratransit Plan Implementation
    As already discussed under Sec. 37.135, the states will receive FTA 
recipient plans for section 18 recipients administered by the State or
any small urbanized area recipient of section 9 funds administered by a
state. Public entities who do not receive FTA funds will submit their
plans directly to the applicable Regional Office (listed in appendix B
to the rule).
    The role of the state is to accept the plans on behalf of FTA, to
ensure that all plans are submitted to it and forward the plans, with
any comments on the plans, to FTA. This comment is very important for
FTA to receive, since states administer these programs on behalf of FTA.
Each state's specific knowledge of FTA grantees it administers will
provide helpful information to FTA in making its decisions.
    The rule lists five questions the states must answer when they
forward the plans. These questions are gauged to capitalize on the
working knowledge the states possess on the grantees. FTA will send a
more specific letter of instruction to each state explaining its role.
                   Section 37.147 FTA Review of Plans
    This provision spells out factors FTA will consider in reviewing 
each plan, including whether the submission is complete, whether the
plan complies with the substance of the ADA regulation, whether the
entity complied with the public participation requirements in developing
the plan, efforts by the entity to coordinate with other entities in a
plan submission, and any comments submitted by the states.
    These elements are not the only items that will be reviewed by FTA.
Every portion of the plan will be reviewed and assessed for compliance
with the regulation. This section merely highlights those provisions
thought most important by the Department.
            Section 37.151 Waiver for Undue Financial Burden
    The Department has adopted a five-year phase-in for paratransit 
service. Under this scheme, each entity required to provide paratransit
service will be able to design a phase-in of its service specifically
geared to local circumstances. While all jurisdictions will not receive
approval for plans with a five year phase-in, each entity will be able
to request what it needs based on local circumstances. Generally, the
section allows an entity to request a wavier at any time it determines
that it will not be able to meet a five-year phase-in or make measured
progress toward its full compliance date specified in its original plan.
    A waiver for undue financial burden should be requested if one of
the following circumstances applies. First, when the entity submits its
first plan on January 26, 1992, if the entity knows it will not be able
to reach full compliance within five years, or if the entity cannot make
measured progress the first year it may submit a waiver request. The
entity also should apply for a waiver, if, during plan implementation,
there are changed circumstances which make it unlikely that compliance
will be possible.
    The concept of measured progress should be given its plain meaning.
It is not acceptable to submit a plan which shows significant progress
in implementing a plan in years four and five, but no progress in years
one and two. Similarly, the progress must be susceptible to objective
verification. An entity cannot merely ``work toward'' developing a
particular aspect of a plan.
    The Department intends that undue burden waiver requests will be
given close scrutiny, and waiver will not be granted highly. In
reviewing requests, however, as the legislative history indicates, FTA
will look at the individual financial constraints within which each
public entity operates its fixed route system. ``Any determination of
undue financial burden cannot have assumed the collection of additional
revenues, such as those received through increases in local taxes or
legislative appropriations, which would not have otherwise been made
available to the fixed route operator.'' (H. Rept. 101-485, Pt. 1, at
31)
[[Page 583]]
                 Section 37.153 FTA Waiver Determination
    If the FTA Administrator grants a waiver for undue financial burden, 
the waiver will be for a specified period of time and the Administrator
will determine what the entity must do to meet its responsibilities
under the ADA. Each determination will involve a judgment of what is
appropriate on a case-by-case basis. Since each waiver will be granted
based on individual circumstances, the Department does not deem it
appropriate to specify a generally applicable duration for a waiver.
    When a waiver is granted, the rule calls for entities to look first
at limiting the number of trips provided to each individual as a means
of providing service that does not create an undue burden. This capacity
constraint, unlike manipulations of other service criteria, will not
result in a degradation of the quality of service. An entity intending
to submit an undue burden waiver request should take this approach into
account in its planning process.
    It should be noted that requiring an entity to provide paratransit
service at least during core hours along key routes is one option that
the Administrator has available in making a decision about the service
to be provided. This requirement stems from the statutory provision that
the Administrator can require the entity to provide a minimum level of
service, even if to do so would be an undue financial burden. Certainly
part of a request for a waiver could be a locally endorsed alternative
to this description of basic service. The rule states explicitly the
Administrator's discretion to return the application for more
information if necessary.
 Section 37.155 Factors in Decision to Grant an Undue Financial Burden 
                                 Waiver
    Factors the Administrator will consider in making a decision whether 
to grant an undue financial burden waiver request include effects on
current fixed route service, reductions in other services, increases in
fares, resources available to implement complementary paratransit over
the period of the plan, current level of accessible service (fixed route
and paratransit), cooperation among transit providers, evidence of
increased efficiencies that have been or could be used, any unique
circumstances that may affect the entity's ability to provide
paratransit service, the level of per capita service being provided,
both to the population as a whole and what is being or anticipated to be
provided to persons who are eligible and registered to receive ADA
paratransit service.
    This final element allows some measure of comparability, regardless
of the specific service criteria and should assist in a general
assessment of level of effort.
    It is only the costs associated with providing paratransit service
to ADA-paratransit eligible persons that can be counted in assessing
whether or not there is an undue financial burden. Two cost factors are
included in the considerations which enhance the Administrator's ability
to assess real commitment to these paratransit provisions.
    First, the Department will allow a statistically valid methodology
for estimating number of trips mandated by the ADA. While the regulation
calls for a trip-by-trip determination of eligibility, this provision
recognizes that this is not possible for some systems, particularly the
large systems. Since only those trips provided to a person when he or
she is ADA eligible may be counted in determining an undue financial
burden, this provision is necessary.
    Second, in determining costs to be counted toward providing
paratransit service, paragraph (b)(3) allows an entity to include in its
paratransit budget dollars to which it is legally entitled, but which,
as a matter of state or local funding arrangements, are provided to
another entity that is actually providing the paratransit service.
    For example, a state government may provide a certain formula
allocation of the revenue from a certain tax to each jurisdiction for
use in providing transportation service at the local level. The funds,
depending on local arrangements, may flow either to a transit
authority--a regulated entity under this rule--or to a city or county
government. If the funds go to the transit authority, they clearly may
be counted in an undue burden calculation. In addition, however, this
provision also allows funds that flow through the city or county
government to be counted in the undue burden calculation, since they are
basically the same funds and should not be treated differently based on
the accident of previously-determined local arrangements. On the other
hand, this provision does not allow funds of a private non-profit or
other organization who uses Department of Health and Human Services
grant or private contributions to be counted toward the entity's
financial commitment to paratransit.
                     Subpart G--Provision of Service
       Section 37.161 Maintenance of Accessible Features--General
    This section applies to all entities providing transportation 
services, public and private. It requires those entities to maintain in
operative condition those features or facilities and equipment that make
facilities and vehicles accessible to and usable by individuals with
disabilities.
    The ADA requires that, to the maximum extent feasible, facilities be
accessible to and usable by individuals with disabilities. This section
recognizes that it is not sufficient to provide features such as lift-
equipped vehicles, elevators, communications systems to provide
information to people with vision or
[[Page 584]]
hearing impairments, etc. if these features are not maintained in a 
manner that enables individuals with disabilities to use them.
Inoperative lifts or elevators, locked accessible doors, accessible
paths of travel that are blocked by equipment or boxes of materials are
not accessible to or usable by individuals with disabilities.
    The rule points out that temporary obstructions or isolated
instances of mechanical failure would not be considered violations of
the ADA or this rule. Repairs must be made ``promptly.'' The rule does
not, and probably could not, state a time limit for making particular
repairs, given the variety of circumstances involved. However, repairing
accessible features must be made a high priority. Allowing obstructions
or out of order accessibility equipment to persist beyond a reasonable
period of time would violate this Part, as would mechanical failures due
to improper or inadequate maintenance. Failure of the entity to ensure
that accessible routes are free of obstruction and properly maintained,
or failure to arrange prompt repair of inoperative elevators, lifts, or
other accessibility-related equipment, would also violate this part.
    The rule also requires that accommodations be made to individuals
with disabilities who would otherwise use an inoperative accessibility
feature. For example, when a rail system discovers that an elevator is
out of order, blocking access to one of its stations, it could
accommodate users of the station by announcing the problem at other
stations to alert passengers and offer accessible shuttle bus service
around the temporarily inaccessible station. If a public address system
were out of order, the entity could designate personnel to provide
information to customers with visual impairments.
  Section 37.163 Keeping Vehicle Lifts in Operative Condition--Public 
                                Entities
    This section applies only to public entities. Of course, like 
vehicle acquisition requirements and other provisions applying to public
entities, these requirements also apply when private entities ``stand in
the shoes'' of public entities in contracting situations, as provided in
Sec. 37.23.
    This section's first requirement is that the entity establish a
system of regular and frequent maintenance checks of lifts sufficient to
determine if they are operative.
    Vehicle and equipment maintenance is an important component of
successful accessible service. In particular, an aggressive preventive
maintenance program for lifts is essential. Lifts remain rather delicate
pieces of machinery, with many moving parts, which often must operate in
a harsh environment of potholes, dust and gravel, variations in
temperature, snow, slush, and deicing compounds. It is not surprising
that they sometimes break down.
    The point of a preventive maintenance program is to prevent
breakdowns, of course. But it is also important to catch broken lifts as
soon as possible, so that they can be repaired promptly. Especially in a
bus system with relatively low lift usage, it is possible that a vehicle
could go for a number of days without carrying a passenger who uses the
lift. It is highly undesirable for the next passenger who needs a lift
to be the person who discovers that the lift is broken, when a
maintenance check by the operator could have discovered the problem days
earlier, resulting in its repair.
    Therefore, the entity must have a system for regular and frequent
checks, sufficient to determine if lifts are actually operative. This is
not a requirement for the lift daily. (Indeed, it is not, as such, a
requirement for lift cycling at all. If there is another means available
of checking the lift, it may be used.) If alternate day checks, for
example, are sufficient to determine that lifts are actually working,
then they are permitted. If a lift is used in service on a given day,
that may be sufficient to determine that the lift is operative with
respect to the next day. It would be a violation of this part, however,
for the entity to neglect to check lifts regularly and frequently, or to
exhibit a pattern of lift breakdowns in service resulting in stranded
passengers when the lifts had not been checked before the vehicle failed
to provide required accessibility to passengers that day.
    When a lift breaks down in service, the driver must let the entity
know about the problem by the most immediate means available. If the
vehicle is equipped with a radio or telephone, the driver must call in
the problem on the spot. If not, then the driver would have to make a
phone call at the first opportunity (e.g., from a phone booth during the
turnaround time at the end of the run). It is not sufficient to wait
until the end of the day and report the problem when the vehicle returns
to the barn.
    When a lift is discovered to be inoperative, either because of an
in-service failure or as the result of a maintenance check, the entity
must take the vehicle out of service before the beginning of its next
service day (with the exception discussed below) and repair the lift
before the vehicle is put back into service. In the case of an in-
service failure, this means that the vehicle can continue its runs on
that day, but cannot start a new service day before the lift is
repaired. If a maintenance check in the evening after completion of a
day's run or in the morning before a day's runs discloses the problem,
then the bus would not go into service until the repair had taken place.
    The Department realizes that, in the years before bus fleets are
completely accessible, taking buses with lifts out of service for
repairs in this way would probably result in an
[[Page 585]]
inaccessible spare bus being used on the route, but at least attention 
would have to be paid quickly to the lift repair, resulting in a quicker
return to service of a working accessible bus.
    The rule provides an exception for those situations in which there
is no spare vehicle (either accessible or inaccessible) available to
take the place of the vehicle with an operative lift, such that putting
the latter vehicle into the shop would result in a reduction of service
to the public (e.g., a scheduled run on a route could not be made). The
Department would emphasize that the exception does not apply when there
is any spare vehicle available.
    Where the exception does apply, the provider may keep the vehicle
with the inoperative lift in service for a maximum of three days (for
providers operating in an area of over 50,000 population) or five days
(for providers operating in an area of 50,000 population or less). After
these times have elapsed, the vehicle must go into the shop, not to
return until the lift is repaired. Even during the three- or five-day
period, if an accessible spare bus becomes available at any time, it
must be used in place of the bus with the inoperative lift or an
inaccessible spare that is being used in its place.
    In a fixed route system, if a bus is operating without a working
lift (either on the day when the lift fails in service or as the result
of the exception discussed above) and headways between accessible buses
on the route on which the vehicle is operating exceed 30 minutes, the
entity must accommodate passengers who would otherwise be inconvenienced
by the lack of an accessible bus. This accommodation would be by a
paratransit or other special vehicle that would pick up passengers with
disabilities who cannot use the regular bus because its lift is
inoperative. Passengers who need lifts in this situation would, in
effect, be ADA paratransit eligible under the second eligibility
category. However, since they would have no way of knowing that the bus
they sought to catch would not be accessible that day, the transit
authority must actively provide alternative service to them. This could
be done, for example, by having a ``shadow'' accessible service
available along the route or having the bus driver call in the minute he
saw an accessible passenger he could not pick up (including the original
passenger stranded by an in-service lift failure), with a short (i.e.,
less than 30-minute) response from an accessible vehicle dispatched to
pick up the stranded passenger. To minimize problems in providing such
service, when a transit authority is using the ``no spare vehicles''
exception, the entity could place the vehicle with the inoperative lift
on a route with headways between accessible buses shorter than 30
minutes.
                 Section 37.165 Lift and Securement Use
    This provision applies to both public and private entities.
    All people using common wheelchairs (an inclusive term for mobility
devices that fit on lifts meeting Access Board guideline dimensions--
30" by 48" and a maximum of 600 pounds for device
and user combined--which includes three-wheeled scooters and other so-
called non-traditional mobility devices) are to be allowed to ride the
entity's vehicles.
    Entities may require wheelchair users to ride in designated
securement locations. That is, the entity is not required to carry
wheelchair users whose wheelchairs would have to park in an aisle or
other location where they could obstruct other persons' passage or where
they could not be secured or restrained. An entity's vehicle is not
required to pick up a wheelchair user when the securement locations are
full, just as the vehicle may pass by other passengers waiting at the
stop if the bus is full.
    The entity may require that wheelchair users make use of securement
systems for their mobility devices. The entity, in other words, can
require wheelchair users to ``buckle up'' their mobility devices. The
entity is required, on a vehicle meeting part 38 standards, to use the
securement system to secure wheelchairs as provided in that part. On
other vehicles (e.g., existing vehicles with securement systems which do
not comply with Part 38 standards), the entity must provide and use a
securement system to ensure that the mobility device remains within the
securement area. This latter requirement is a mandate to use best
efforts to restrain or confine the wheelchair to the securement area.
The entity does the best it can, given its securement technology and the
nature of the wheelchair. The Department encourages entities with
relatively less adequate securement systems on their vehicles, where
feasible, to retrofit the vehicles with better securement systems, that
can successfully restrain a wide variety of wheelchairs. It is our
understanding that the cost of doing so is not enormous.
    An entity may not, in any case, deny transportation to a common
wheelchair and its user because the wheelchair cannot be secured or
restrained by a vehicle's securement system, to the entity's
satisfaction.
    Entities have often recommended or required that a wheelchair user
transfer out of his or her own device into a vehicle seat. Under this
rule, it is no longer permissible to require such a transfer. The entity
may provide information on risks and make a recommendation with respect
to transfer, but the final decision on whether to transfer is up to the
passenger.
    The entity's personnel have an obligation to ensure that a passenger
with a disability is able to take advantage of the accessibility
[[Page 586]]
and safety features on vehicles. Consequently, the driver or other 
personnel must provide assistance with the use of lifts, ramps, and
securement devices. For example, the driver must deploy the lift
properly and safely. If the passenger cannot do so independently, the
driver must assist the passenger with using the securement device. On a
vehicle which uses a ramp for entry, the driver may have to assist in
pushing a manual wheelchair up the ramp (particularly where the ramp
slope is relatively steep). All these actions my involve a driver
leaving his seat. Even in entities whose drivers traditionally do not
leave their seats (e.g., because of labor-management agreements or
company rules), this assistance must be provided. This rule overrides
any requirements to the contrary.
    Wheelchair users--especially those using electric wheelchairs often
have a preference for entering a lift platform and vehicle in a
particular direction (e.g., backing on or going on frontwards). Except
where the only way of successfully maneuvering a device onto a vehicle
or into its securement area, or an overriding safety concern (i.e., a
direct threat) requires one way of doing this or another, the transit
provider should respect the passenger's preference. We note that most
electric wheelchairs are usually not equipped with rearview mirrors, and
that many persons who use them are not able to rotate their heads
sufficiently to see behind. When an electric wheelchair must back up a
considerable distance, this can have unfortunate results for other
people's toes.
    People using canes or walkers and other standees with disabilities
who do not use wheelchairs but have difficulty using steps (e.g., an
elderly person who can walk on a plane without use of a mobility aid but
cannot raise his or her legs sufficiently to climb bus steps) must also
be permitted to use the lift, on request.
                Section 37.167 Other Service Requirements
    The requirements in this section apply to both public and private 
entities.
    On fixed route systems, the entity must announce stops. These stops
include transfer points with other fixed routes. This means that any
time a vehicle is to stop where a passenger can get off and transfer to
another bus or rail line (or to another form of transportation, such as
commuter rail or ferry), the stop would be announced. The announcement
can be made personally by the vehicle operator or can be made by a
recording system. If the vehicle is small enough so that the operator
can make himself or herself heard without a P.A. system, it is not
necessary to use the system.
    Announcements also must be made at major intersections or
destination points. The rule does not define what major intersections or
destination points are. This is a judgmental matter best left to the
local planning process. In addition, the entity must make announcements
at sufficient intervals along a route to orient a visually impaired
passenger to his or her location. The other required announcements may
serve this function in many instances, but if there is a long distance
between other announcements, fill-in orientation announcements would be
called for. The entity must announce any stop requested by a passenger
with a disability, even if it does not meet any of the other criteria
for announcement.
    When vehicles from more than one route serve a given stop or
station, the entity must provide a means to assist an individual with a
visual impairment or other disability in determining which is the proper
vehicle to enter. Some entities have used external speakers. FTA is
undertaking a study to determine what is the best available technology
in this area. Some transit properties have used colored mitts, or
numbered cards, to allow passengers to inform drivers of what route they
wanted to use. The idea is to prevent, at a stop where vehicles from a
number of routes arrive, a person with a visual impairment from having
to ask every driver whether the bus is the right one. The rule does not
prescribe what means is to be used, only that some effective means be
provided.
    Service animals shall always be permitted to accompany their users
in any private or public transportation vehicle or facility. One of the
most common misunderstandings about service animals is that they are
limited to being guide dogs for persons with visual impairments. Dogs
are trained to assist people with a wide variety of disabilities,
including individuals with hearing and mobility impairments. Other
animals (e.g., monkeys) are sometimes used as service animals as well.
In any of these situations, the entity must permit the service animal to
accompany its user.
    Part 38 requires a variety of accessibility equipment. This section
requires that the entity use the equipment it has. For example, it would
be contrary to this provision for a transit authority to bolt its bus
lifts shut because transit authority had difficulty maintaining the
lifts. It does little good to have a public address system on a vehicle
if the operator does not use it to make announcements (except, as noted
above, in the situation where the driver can make himself or herself
heard without recourse to amplification.)
    Entities must make communications and information available, using
accessible formats and technology (e.g., Braille, large print, TDDs) to
obtain information about transportation services. Someone cannot
adequately use the bus system if schedule and route information is not
available in a form he or she can use. If there is only one phone line
on which ADA paratransit eligible
[[Page 587]]
individuals can reserve trips, and the line is chronically busy, 
individuals cannot schedule service. Such obstacles to the use of
transportation service are contrary to this section. (The latter could,
in some circumstances, be viewed as a capacity constraint.)
    It is inconsistent with this section for a transit provider to
refuse to let a passenger use a lift at any designated stop, unless the
lift is physically unable to deploy or the lift would be damaged if it
did deploy (see discussion under Sec. 37.123). In addition, if a
temporary situation at the stop (e.g., construction, an accident, a
landslide) made the stop unsafe for anyone to use, the provider could
decline to operate the lift there (just as it refused to open the door
for other passengers at the same point). The provider could not,
however, declare a stop ``off limits'' to persons with disabilities that
is used for other persons. If the transit authority has concerns about
barriers or safety hazards that peculiarly affect individuals with
disabilities that would use the stop, it should consider making efforts
to move the stop.
    Under DOT hazardous materials rules, a passenger may bring a
portable medical oxygen supply on board a vehicle. Since the hazardous
materials rules permit this, transit providers cannot prohibit it. For
further information on hazardous materials rules, as they may affect
transportation of assistive devices, entities may contact the
Department's Research and Special Programs Administration, Office of
Hazardous Materials Transportation (202-366-0656).
    One concern that has been expressed is that transportation systems
(particularly some rail systems) may make it difficult for persons with
disabilities to board or disembark from vehicles by very rapidly closing
doors on the vehicles before individuals with disabilities (who may move
more slowly through crowds in the vehicle or platform than other
persons) have a chance to get on or off the vehicle. Doing so is
contrary to the rule; operators must make appropriate provision to give
individuals with disabilities adequate time to board or disembark.
   Section 37.169 Interim Requirements for Over-the-Road Bus Service 
                      Operated by Private Entities
    Private over-the-road bus (OTRB) service is, first of all, subject 
to all the other private entity requirements of the rule. The
requirements of this section are in addition to the other applicable
provisions.
    Boarding assistance is required. The Department cannot require any
particular boarding assistance devices at this time. Each operator may
decide what mode of boarding assistance is appropriate for its
operation. We agree with the discussion in the DOJ Title II rule's
preamble that carrying is a disfavored method of providing assistance to
an individual with a disability. However, since accessible private OTRBs
cannot be required by this rule, there may be times when carrying is the
only available means of providing access to an OTRB, if the entity does
not exercise its discretion to provide an alternative means. It is
required by the rule that any employee who provides boarding
assistance--above all, who may carry or otherwise directly physically
assist a passenger--must be trained to provide this assistance
appropriately and safely.
    The baggage priority provision for wheelchairs and other assistive
devices involves a similar procedure to that established in the
Department's Air Carrier Access Act rule (14 CFR part 382). In brief, it
provides that, at any given stop, a person with a wheelchair or other
assistive device would have the device loaded before other items at this
stop. An individual traveling with a wheelchair is not similarly
situated to a person traveling with luggage. For the wheelchair user,
the wheelchair is an essential mobility device, without which travel is
impossible. The rationale of this provision is that, while no one wants
his or her items left behind, carrying the wheelchair is more important
to its user than ordinary luggage to a traveler. If it comes to an
either/or choice (the wheelchair user's luggage would not have any
priority over other luggage, however). There would be no requirement,
under this provision, for ``bumping'' baggage already on the bus from
previous stops in order to make room for the wheelchair.
    The entity could require advance notice from a passenger in only one
circumstance. If a passenger needed boarding assistance, the entity
could require up to 48 hours' advance notice for the purpose of
providing needed assistance. While advance notice requirements are
generally undesirable, this appears to be a case in which a needed
accommodation may be able to be provided successfully only if the
transportation provider knows in advance that some extra staffing is
needed to accomplish it. While the primary need for advance notice
appears to be in the situation of an unstaffed station, there could be
other situations in which advance notice was needed in order to ensure
that the accommodation could be made. Entities should not ask for
advance notice in all cases, but just in those cases in which it is
really needed for this purpose. Even if advance notice is not provided,
the entity has the obligation to provide boarding assistance if it can
be provided with available staff.
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  Section 37.171 Equivalency Requirement for Demand Responsive Service 
     Operated by Private Entities Not Primarily in the Business of
                           Transporting People
    This provision is a service requirement closely related to the 
private entity requirements for Sec. Sec. 37.101-37.105 of this part.
Entities in this category are always required to provide equivalent
service, regardless of what they are doing with respect to the
acquisition of vehicles. The effect of this provision may be to require
some entities to arrange, either through acquiring their own accessible
vehicles or coordinating with other providers, to have accessible
vehicles available to meet the equivalency standards of Sec. 37.105 or
otherwise to comply with those standards.
                         Section 37.173 Training
    A well-trained workforce is essential in ensuring that the 
accessibility-related equipment and accommodations required by the ADA
actually result in the delivery of good transportation service to
individuals with disabilities. The utility of training was recognized by
Congress as well. (See S. Rept. 100-116 at 48.) At the same time, we
believe that training should be conducted in an efficient and effective
manner, with appropriate flexibility allowed to the organizations that
must carry it out. Each transportation provider is to design a training
program which suits the needs of its particular operation. While we are
confident of this approach, we are mindful that the apparent lack of
training has been a source of complaint to FTA and transit providers.
Good training is difficult and it is essential.
    Several points of this section deserve emphasis. First, the
requirements for training apply to private as well as to public
providers, of demand responsive as well as of fixed route service.
Training is just as necessary for the driver of a taxicab, a hotel
shuttle, or a tour bus as it is for a driver in an FTA-funded city bus
system.
    Second, training must be to proficiency. The Department is not
requiring a specific course of training or the submission of a training
plan for DOT approval. However, every employee of a transportation
provider who is involved with service to persons with disabilities must
have been trained so that he or she knows what needs to be done to
provide the service in the right way. When it comes to providing service
to individuals with disabilities, ignorance is no excuse for failure.
    While there is no specific requirement for recurrent or refresher
training, there is an obligation to ensure that, at any given time,
employees are trained to proficiency. An employee who has forgotten what
he was told in past training sessions, so that he or she does not know
what needs to be done to serve individuals with disabilities, does not
meet the standard of being trained to proficiency.
    Third, training must be appropriate to the duties of each employee.
A paratransit dispatcher probably must know how to use a TDD and enough
about various disabilities to know what sort of vehicle to dispatch. A
bus driver must know how to operate lifts and securement devices
properly. A mechanic who works on lifts must know how to maintain them.
Cross-training, while useful in some instances, is not required, so long
as each employee is trained to proficiency in what he or she does with
respect to service to individuals with disabilities.
    Fourth, the training requirement goes both to technical tasks and
human relations. Employees obviously need to know how to run equipment
the right way. If an employee will be assisting wheelchair users in
transferring from a wheelchair to a vehicle seat, the employee needs
training in how to do this safely. But every public contact employee
also has to understand the necessity of treating individuals with
disabilities courteously and respectfully, and the details of what that
involves.
    One of the best sources of information on how best to train
personnel to interact appropriately with individuals with disabilities
is the disability community itself. Consequently, the Department urges
entities to consult with disability organizations concerning how to
train their personnel. Involving these groups in the process of
establishing training programs, in addition to providing useful
information, should help to establish or improve working relationships
among transit providers and disability groups that, necessarily, will be
of long duration. We note that several transit providers use persons
with disabilities to provide the actual training. Others have reported
that role playing is an effective method to instill an appreciation of
the particular perspective of one traveling with a disability.
    Finally, one of the important points in training concerns
differences among individuals with disabilities. All individuals with
disabilities, of course, are not alike. The appropriate ways one deals
with persons with various kinds of disabilities (e.g., mobility, vision,
hearing, or mental impairments) are likely to differ and, while no one
expects bus drivers to be trained as disability specialists, recognizing
relevant differences and responding to them appropriately is extremely
significant. Public entities who contract with private entities to have
service provided--above all, complementary paratransit--are responsible
for ensuring that contractor personnel receive the appropriate training.
[56 FR 45621, Sept. 6, 1991, as amended at 61 FR 25416, May 21, 1996]
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