Preamble--Transportation for Individuals with Disabilities [September 6, 1991]

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DEPARTMENT OF TRANSPORTATION

49 CFR Parts 27, 37 and 38

[Docket 47483; Notice 91-14]

RIN 2105-AB53

Transportation for Individuals with Disabilities

AGENCY: Department of Transportation, Office of the Secretary

ACTION: Final rule

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SUMMARY: The Department is issuing a final rule implementing the transportation provisions of the Americans with Disabilities Act (ADA). The rule contains provisions on acquisition of accessible vehicles by private and public entities, requirements for complementary paratransit service by public entities operating a fixed route system, and provision of nondiscriminatory accessible transportation service. The Department is also amending the Department's rule implementing section 504 of the Rehabilitation Act of 1973 in light of the ADA rule.

EFFECTIVE DATES: The provisions of 49 CFR Parts 37 and 38 are effective [30 days from date of publication in the Federal Register]., except for certain requirements stated in §37.13, which are effective January 26, 1992. The amendments to 49 CFR Part 27 are effective [30 days from date of publication in the Federal Register], except the deletions of Subparts B and C thereof and the redesignation of Subpart F as Subpart C and Subpart D as Subpart B, which are effective January 26, 1992.

FOR FURTHER INFORMATION CONTACT: Robert C. Ashby, Deputy Assistant General Counsel for Regulation and Enforcement, Department of Transportation, 400 7th Street, S.W., Room 10424, Washington, D.C., 20590. (202) 366-9306 (voice); (202) 755-7687 (TDD), or Susan Schruth, Office of Chief Counsel, Urban Mass Transportation Administration, same address, Room 9316. (202) 366-4011. Copies and of the rule in accessible formats will be made available on request.

SUPPLEMENTARY INFORMATION

This portion of the preamble discusses the basis and purpose of Part 37. It also responds to comments on the Department's notice of proposed rulemaking on this subject issued April 4, 1991 (56 FR 13856) and highlights provisions in part 38; the Department's promulgation of the accessible vehicle specifications developed by the Architectural and Transportation Barriers Compliance Board.

The Department received over 260 written comments on the NPRM, from a wide variety of disability community, transit industry, and other interested commenters. In addition, the Urban Mass Transportation Administration (UMTA) held six public hearings, at which we received approximately 120 spoken and written comments.

Before issuing the NPRM, in January 1991, the Urban Mass Transportation Administration (UMTA) sponsored a meeting of a Federal Advisory Committee, which included 26 persons representing transit providers, state governments, disability groups, the Architectural and Transportation Barriers Compliance Board, the Office of the Secretary and UMTA. A number of observers from other organizations also contributed to the discussion. The principal subjects discussed were service criteria for complementary paratransit, undue financial burden for complementary paratransit, and operational issues. This group met again in June 1991 to discuss the comments and the Department's responses to them and provided suggestions about what the final rule should say. Advisory Committee discussions of issues are noted in the preamble.

We wish to thank the members of the Advisory Committee for their time, creative thinking, and cooperative and constructive approach to issues. Transit providers and the disability community must work together if the promise of the ADA is to be realized, and the Advisory Committee's deliberations were a good example of how such a working relationship can contribute to achieving this goal.

SECTION-BY-SECTION ANALYSIS

This portion of the preamble discusses each section of the final rule, summarizing the comments on the corresponding portion of the notice of proposed rulemaking and providing the Department's responses to the comments. In Appendix D to this rule, the Department explains in greater detail its interpretation and construction of the provisions of the final rule.

§27.19 Amendments to DOT Section 504 rule

The Department is amending its existing section 504 rule (49 CFR Part 27) to avoid potential overlapping, duplication, or confusion between ADA and 504 requirements. For this reason, a number of provisions of the 504 rule are being removed. The effective date of some of these removals is January 26, 1991, in order to avoid gaps in regulatory coverage between now and then.

The basic relationship between section 504 and the ADA is that a recipient of DOT funds complies with its section 504 obligations by complying with its ADA obligations. At the same time, section 501 of the ADA provides that nothing in the ADA shall be construed "to apply a lesser standard" than section 504 or agency regulations implementing section 504.

One comment suggested clarifying that 504 requirements apply to private as well as public entities. The rule does cover all recipients, and language emphasizing this point has been added. Part 27 includes references to the Uniform Federal Accessiblity Standard (UFAS) as the standard that construction and alterations of facilities must meet. A comment suggested updating references to UFAS in the section 504 rule, so that there would be consistency between portions of that rule and Department of Justice (DOJ) rules that apply to airports and other covered entities (the DOJ rules, like Part 37, rely on the new Access Board facility standards). We have done so with an amendment to §27.67(b) of the rule, which defines the applicable accessibility standard for purposes of Part 27.

Finally, there were a few comments concerning proposed §27.19(c). This proposal would have applied, under the authority of section 504, the ADA's public entity transit requirements to private entities receiving UMTA funds who operate an urban mass transit system. The Department is deleting the proposed provision in Part 27, and we discuss the issues involved in connection with 49 CFR §37.23 below.

Subpart A - General

§37.1 - Purpose.

There were no comments on this section. There have been only minor editorial changes to its text.

§37.3 Definitions.

Section 501 of the ADA makes it clear that in no case should an entity's responsibilities under section 504 of the rehabilitation Act be lessened because of the ADA.

Since an option for compliance under section 504 is accessible fixed route transportation, entities such as the examples mentioned above would be held to a comparable standard, since private entities primarily engaged in the business of providing transportation must purchase accessible new vehicles. Accordingly, we are deleting the proposed paragraph.

We have added a number of entries in the definitions section of the rule. These additions pick up definitions from the Department of Justice (DOJ) ADA regulations and the Access Board guidelines. The additions are "accessible," "alteration," "automated guideway transit system," "bus," high speed rail," "light rail," "rapid rail," and "service animal." The Department also has made editorial modifications to the definition of "disability" to be consistent with the DOJ definition of the term.

We received several comments on the definition of "commuter bus service." This term is important because the ADA does not require public entities to provide complementary paratransit with respect to commuter bus service. One of these comments suggested the definition be clarified so as not to exclude a service that provides some service opposite to the main rush hour traffic flow. The existing definition, which talks of service "predominantly," rather than exclusively, in one direction, does not exclude such service.

Another comment suggested that the term specifically include dedicated bus service to commuter rail routes. It is reasonable to infer that commuter bus service was excepted from the ADA's paratransit requirement because of the differences between the characteristics of commuter service and regular mass transit service. Typically, commuter bus service does not attempt to cover an area comprehensively, but rather has a limited route structure connecting a limited number of origins and destinations. Typically, this service is intended to interface with another mode of transportation (e.g., the automobile, with the connection occurring at a park-and-ride facility). Trips are often primarily for limited purposes (e.g., work trips).

We construe the commuter bus category to apply to a range of services which differ significantly from the model of urban mass transportation fixed route service to which Congress attached the complementary paratransit obligation. For this range of services, because of their differences from urbam mass transportation fixed route service, paratransit is not a necessary or appropriate complement.

A number of services other than work-trip oriented commuter service are within this range. The commenter's dedicated service to commuter rail, some airport shuttle services, public university shuttles, or intercity rail connecter services all have limited routes and limited origins and destinations, do not attempt to provide areawide transportation service, interface with one or more transportation modes, and have limited purposes. For this reason, we have included systems with these characteristics in the definition of "commuter bus service." The implications of this change for certain specific systems are discussed in the discussion of Subpart B in the preamble to this document.

A few comments addressed "disability." Some suggested removing "permanent or temporary," suggesting that this language is unnecessary. The DOJ definition does not include these words, so we have deleted them for consistency. In our view, the terms are unnecessary because any condition that meets the criteria of the definition, regardless of its duration, is a disability. Other comments suggested adding specific mention of such conditions as cognitive or energy deficient disorders and environmental illness.

The DOJ definition does not cite these conditions specifically. The list of conditions in the definition, in any case, is not exhaustive, and does not exclude unspecified conditions that meet its criteria. For these reasons, we did not add mention of the conditions.

One commenter suggested a much more detailed definition of "mental disability." DOJ did not adopt this comment, which was also made to its proposed rules, and we think it best to remain consistent with DOJ. Moreover, the details of the definition of disability are probably somewhat less important in the DOT rule than in the DOJ or Equal Employment Opportunity Commission (EEOC) rules, since it is functional ability to use fixed route transit, rather than precise diagnosis or classification of a disability, which is most relevant to the provision of transportation under this rule.

In the definition of "facility," the Department has deleted the reference in DOJ's definition to "rolling stock and other conveyances." In the DOT rule, there is a clear demarcation between facilities and vehicles, and we believe that the definition will be clearer for the deletion of these terms.

The most frequent subjects of comment were the definitions of "fixed route" and "demand responsive" service. The most frequent comment was that the definitions strayed too far from the ADA statutory definitions of the terms. Commenters objected to references to the presence or absence of an advance request for service as a distinguishing point between the two kinds of service. They also objected to the definition's statement that the terms applied to transportation "including but not limited to" designated and specified transportation services. While an advance request for service is a key characteristic distinguishing fixed route and demand responsive service, this characteristic is not included in the statutory text, and so we will delete it from the regulatory text.

The reason for the "including but not limited to" language has to do with the structure of Title III of the ADA. Private entities not primarily engaged in the business of transporting people do not, by statutory definition, provide specified public transportation service. The definitions of fixed route and demand responsive transportation must apply to these entities as well as public entities and private entities who are primarily engaged in the business of transporting people. For clarity, the language has been reorganized to make it clear that it applies only to private entities.

The Department received a few comments suggesting amendment of the definition of "intercity passenger rail car" to encompass rail cars on systems run by entities other than Amtrak. This issue is addressed in the Applicability subpart. Another commenter wanted this definition to specify that it applied only to rail passenger cars with accommodations intended for revenue passengers. We recognize that passenger railroads have cars that are not intended to accommodate passengers (e.g., baggage cars, dormitory cars for workers)). While we do not think that these cars could easily be confused with rail passenger cars, there is no harm in adding the requested language (which the Access Board also has done).

We have added a reference to private entities in the definition of "operates." This is an important definition, which forms the basis for the "stand in the shoes" provision affecting contractors to other transportation providers. Comments suggested that it was reasonable to apply the "stand in the shoes" concept to private contractors to private entities, as well as private contractors to public entities. We agree, and this addition is consistent with this determination.

The Department received a few comments comments on the definition of "station." Two asked for the addition of a definition of "flag stop," a term used in the NPRM definition of "station." We have added a definition of this term, derived from the Department's 1979 section 504 rule, as a parenthetical in the "station" definition. Other comments noted that the definition applies to intercity and commuter but not to light and rapid rail systems. The "station" definition in the ADA itself shares this limitation. The addition of definitions of "light rail" and "rapid rail" should help to provide clarity in this area.

The Department has added a new definition of "transit facility." This definition relates only to the Access Board guideline requirement for TDDs, which applies to transit facilities. Only closed structures the primary function of which serves as a transit facility are made subject to the TDD requirement. The aim of the definition is to avoid a potentially burdensome mandate for TDDs in structures not primarily used for transportation purposes. Consistent with Access Board terminology, the term "text telephone" is used interchangably in the rule with "TDD."

In the definition of "used vehicle," we have deleted a reference to June 1990 as a trigger date for a vehicle being considered as used. This date, which derived from the ADA's legislative history, had relevance with the vehicle accessibility requirements first went into effect in August 1990. Now, however, any vehicle with prior use is considered to be "used."

In response to comments concerning the coverage of vanpools under the rule, we have added a definition of "vanpool." This term refers to ridesharing arrangements for work trips in which the driver is, essentially, a volunteer. The coverage of vanpools is discussed in the Applicability subpart.

Several comments addressed the definition of "wheelchair." Some suggested it be expanded (e.g., to include canes and walkers), others that it be clarified or contracted (e.g., with respect to three-wheeled scooters and electric wheelchairs). Most commenters supported the definition's inclusion of "non-traditional" mobility devices. One comment suggested the substitution of the term "mobility device" for "wheelchair, which we are not doing since "wheelchair" is used in the statute. We have incorporated into the definition the Access Board's definition of the related term "common wheelchair" (i.e., a wheelchair that fits on a 30" x 48" lift platform and does not weigh more than 600 pounds when occupied).

§37.5 Nondiscrimination.

Some commenters with visual impairments asked for the addition of a provision prohibiting transit providers from requiring individuals with disabilities to use priority seats. One commenter, who is blind, told of a personal experience in which a driver stopped the bus and called the police because the commenter insisted on standing rather than sitting in an "elderly and handicapped" seat. The existing language of paragraph (b) of this section generally covers such situations. However, to ensure that the requirement is clearly understood, we have added language specifically prohibiting an entity from requiring an individual with a disability to use a priority seat, if the individual does not choose to use such a seat.

There were a few comments on the issue of special charges, which the NPRM would prohibit. Disability groups that commented supported the ban. Transportation providers generally wanted assurance that the provision would not prohibit nondiscriminatory charges for service, which is indeed the case. The provision also does not prohibit charges otherwise permitted by the rule (e.g., fares for complementary paratransit that may be twice the fixed route fare).

One commenter asked for provisions that would deem entities not to be in noncompliance for occasional violations if they had a policy prohibiting violations and for situations in which a driver reasonably believed that he or she could not assist the passenger without significant risk of injury. On the first point, while the Department encourages clearly stated policies requiring compliance with the ADA, we do not believe that having such a policy is sufficient for compliance. As in any area of ADA compliance, employers are held responsible for their employees' actions.

On the second point, the Department does not believe it would be appropriate to provide a generic exception to the requirement to provide service to persons with disabilities. We are concerned that such an exception could be too broadly interpreted.

Drivers of taxis or shuttles routinely assist passengers with stowing luggage which is much heavier than most folding wheelchairs, the users of which are often able to transfer to a vehicle seat on their own. Persons with more severe mobility impairments, who use electric wheelchairs, will, in most cases, be unable to use an automobile and, in most cases, their wheelchairs can go up a ramp under their own power. Heavy lifting will typically not be required of the driver of a lift-equipped van. Consequently, it is likely that problems of the kind envisioned by the commenter will not occur frequently. If occasional problems do occur, they are better dealt with on a case-by-case basis in the enforcement process, where all the specifics of a situation can be considered, than by a general provision of the rule.

Commenters from disability groups asked that there be a prohibition on requirements for attendants, while some transit providers asked for the discretion to require them (e.g., for someone with a mental disability who had a history of violent conduct). Consistent with the DOJ ADA rulemakings, the rule will prohibit attendant requirements. If a person is not violent or engaging in disruptive behavior the entity is required to provide service. If a person is violent, seriously disrputive, or engaging in illegal conduct, however, the provider may, consistent with established procedures for all riders, refuse to carry the passenger. The mere fact that a passenger may, because of a disability, offend or annoy other persons is not a reason to deny service, however.

The Department has added a provision, drawn from the DOJ Title III rules, that prohibits denials of service or other discriminatory treatment based on insurance company requirements (e.g., coverage or rate decisions) inconsistent with this rule.

§37.7 Standards for Accessible Vehicles.

This section provides that a vehicle is considered to be accessible if it meets the Architectural and Transportation Barriers Compliance Board (Access Board) guidelines, which the Department has incorporated into its rules as 49 CFR Part 38. There were a substantial number of comments about the Access Board guidelines, most of which were transmitted to the Access Board as well as to DOT. DOT worked closely with the Access Board to work out problems which the comments raised, on such subjects as lift platform dimensions and railcar end door and vestibule dimensions. The Access Board's resolutions of these and other issues, and the Board's responses to comments, are set forth in the preamble to the final Access Board guidelines. The most important issues are summarized in the preamble to Part 38.

The final version of the Access Board guidelines includes the concept of "equivalent facilitation." Section 37.7(b) reflects this addition. Equivalent facilitation is a concept that has existed in the facilities accessibility standards, but was not included in the ATBCB's proposed vehicle standards. Briefly, equivalent facilitation provides an alternative to strict compliance with the specifications of a particular standard. It is not a lesser standard, but it does acknowledge that there may be unique circumstances that make it impossible for an entity to comply literally with the standard.

Equivalent facilitation applies to both rail and non-rail vehicles, and could include a variety of approaches to providing access. For example, in the case of a rail system that had difficulty meeting horizontal gap requirements, it might be possible for the use of a bridgeplate (and the deployment of personnel to put the bridgeplate in place) to be an equivalent facilitation, in appropriate circumstances.

Equivalent facilitation would be allowed in those cases where an entity can demonstrate that its alternative method of compliance provides comparable access and usability to persons with disabilities. While the Access Board guidelines introduce the concept of equivalent facilitation, the DOT regulation specifies the procedure for using the alternative method of compliance. Paragraph (b) sets this procedure out, explaining that determinations will be made on a case-by-case basis and that the public participation requirements generally required for this part must be used to determine the "equivalent" method of complying with the intent of the standard.

Transit providers requested that the DOT rule make clear that vehicles purchased under accessibility standards in existence before these new requirements are still considered accessible. This comment was echoed by transit properties for modifications to facilities that have been made under previously valid requirements.

The final rule makes clear that in order for a vehicle to be considered accessible to and usable by an individual with disabilities, it must comply with the Access Board standards. A vehicle that does not meet these standards cannot, therefore, be regarded as "accessible." The Access Board guidelines themselves have taken into consideration the concern about the use of vehicles meeting older standards being able to be used to meet the "one car per train" standard.

Finally, a new paragraph (c) has been added to cross-reference portions of Part 38 applicable to over-the-road buses subject to public entity requirements by virtue of the "stand in the shoes" requirement of §37.23 or because the buses were purchased or leased directly by a public entity. While over-the-road coaches purchased by or on behalf of a public entity have had to be accessible since August 26, 1990, we had not previously defined what accessible means. Accordingly, this regulation specifies that an over-the-road bus must have a lift which meets the performance requirements of a regular bus lift (see _38.23) and meet the interim accessibility features specified for all other over-the-road buses in Part 38, Subpart G.

§37.9 Standards for Accessible Transportation Facilities.

Section 37.13(b) of the NPRM proposed that each transportation facility, in order to be accessible to and usable by persons with disabilities, must meet the guidelines proposed by the Architectural and Transportation Barriers Compliance Board (Access Board), reprinted as Appendix B to Part 37 in the proposed rule.

While the Department received over 150 comments to this section and the standards themselves, the comments were almost universally duplicative of comments sent directly to the Access Board. The Access Board is the appropriate entity to review the comments, since it is their responsibility under the ADA to define what an accessible facility looks like. All of the comments are discussed at length in the preamble to the Access Board's document adopting their guidelines as final.

The Department did receive several comments requesting clarification that a facility built to previously valid accessibility standards be "grandfathered" -- that is, considered accessible. This would come up especially in the context of the key station requirement, in which rail operators will have to make designated key stations accessible by July 26, 1993 (with some extensions of time available).

The argument of the commenters is that they should not be penalized for making their stations or certain aspects of their stations accessible before the effective date of this rule. The Department agrees with this, and specifies that certain work done before the effective date of this rule will continue to be considered accessible.

The grandfather provision applies only to key stations, if the work was done in compliance with the Uniform Federal Accessibility Standards or ANSI A117.1 (1980), American National Standards Specifications for Making Buildings and Facilities Accessible to and Usable by, the Physically Handicapped, it will be considered accessible. For example, if an entity used a Federal grant or loan or money derived from the Metropolitan Washington Compact to make changes to a building, it would have had to comply with the Uniform Federal Accessibility standards. Likewise, a private entity, without benefit of any Federal money, may have complied with the ANSI A117.1 standard in altering a facility. So long as the work was done in conformity with the standard that was in effect when the work was done, the facility will be considered accessible.

It is important to note, however, that one change does not make the entire facility accessible. For example, if tactile strips were installed along the station platform edges, these strips would be considered accessible, even if they do not meet the standards being promulgated today, if they met one the UFAS or ANSI standard cited above when installed. However, the installation of tactile strips does not eliminate the entity's responsibility to make other changes to the facility to make it accessible in other ways.

New paragraph (c) of this section clarifies a provision of the Access Board's standards concerning the construction of bus stop pads. 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 clarifying language in the DOT rule is to explain 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, recognizes that most physical improvements related to bus stops are out of the control of the transit provider. Paragraph (c) of §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 other comment was submitted to the Access Board concerning an implication of this provision where there is a bus loading island with buses pulling up on both sides of the island. The concern is that the bus pad specification would require the island to be a minimum of 84 inches wide (two widths of a bus stop pad), which exceeds most available urban space. While building a "double-wide pad" would be one approach to compliance, other approaches based on operational practices at a pad of normal width would also be acceptable, consistent with the concept of "equivalent facilitation."

A new paragraph (e), parallel to §37.7(b), has been added to provide a procedure for reviewing proposed equivalent facilitation requests in transportation facilities.

§37.11 Administrative Enforcement

There was little comment on this section, the substance of which has not been changed from the NPRM.

§37.13 Effective date for certain vehicle lift specifications

This section is new, and reflects comments from transit providers and bus manufacturers concerning the effect of Access Board vehicle lift specifications (e.g., relating to lift platform size). Commenters were concerned that, if lifts on buses procured immediately after this rule went into effect had to meet these specifications, there would be difficulties in meeting procurement requests in a timely fashion. For example, some retooling or redesign may be necessary that could not be accomplished without some delay. For this reason, the Department has decided to grant a brief delay in the effectiveness of certain lift specifications, until January 26, 1992. Particularly given the interaction of this section with the paratransit eligibility standards, we do not believe that this additional time for compliance should result in significant problems for passengers.

Subpart B - Applicability

§37.21 Applicability - General.

In order to devote sufficient attention to a variety of issues regarding the applicability of the regulation, the discussion of applicability takes up Subpart B of the final regulation. The matters covered by this section are quite obvious, and were not the subject of comment. Paragraphs (a) and (b) are unchanged from the NPRM. Paragraph (c) has been added to underline the fact that most, if not all, transportation providers covered by Part §37 also are covered by DOJ regulations either under Title II or Title III of the ADA. We have worked closely with the DOJ to ensure consistency among our regulations. However, should any apparent inconsistency crop up in the future, Part 37 would control with respect to transportation vehicles, facilities, or services.

§37.23 Service Under Contract

This section embodies the "stand in the shoes" concept discussed at length in the Department's October 4 final rule and the NPRM. Briefly, it provides that when a public entity contracts with a private entity to provide transportation service, the private entity must play by the public entity's rules with respect to vehicle acquisition and transportation service issues.

This provision is based on the definition of the term "operates" in §221(4) of the ADA, which says that the term

...as used with respect to a fixed route system or demand responsive system, includes operation of such system by a person under a contractual or other arrangement or relationship with a public entity.

When §222(b) of the Act provides that it is discrimination for a public entity to purchase or lease an inaccessible vehicle, for example, it applies the accessible vehicle acquisition requirement to private entities "operating" such a system, or part of one, under a contract for a public entity.

This understanding of the statutory language was clearly contemplated by Congress.

With regard to the operation of a system providing public transportation, if a public entity has entered into a contractual or other arrangement or relationship with a private entity to operate the system, or a portion of the system, the public entity must assure that the same accessibility requirements are met by the private entity for service provided under a contractual, or other arrangement or relationship as would apply if the public entity were operating the system, or portion of the system, itself. H. Rept. 101-485, Pt. 1 at 26.

All but one commenter who addressed this subject supported the "stand in the shoes" concept (that commenter believes that over- the-road buses operated by private contractors for public entities should not have to be accessible, a position the Department believes to be inconsistent with the statute - see 56 FR 13859-60, April 4, 1991). Commenters favoring, or not objecting, to this approach, included disability groups and both public and private transit providers. Since the provision is so clearly called for by the statute, it is being retained. A few commenters representing disability groups asked for more stringent requirements (e.g., that all buses, new or existing, provided by a contractor for public entity services be accessible). The Department believes this approach would exceed the statutory attachment of accessibility requirements to situations involving a "purchase or lease."

This provision applies not only to the acquisition of vehicles under contract, but also in contemplation of use under contract, to a public entity. The "in contemplation of" language was opposed by a few transit providers and generally was endorsed by disability group commenters. While it is clear from the comments that this provision would need to be enforced on a case-by-case basis, which typically involves some difficult judgment calls, the Department believes it is valuable to retain "in contemplation of." This language plugs a potential loophole in the "stands in the shoes" provision big enough to accommodate an inaccessible bus.

In the absence of this provision, if a contractor was about to sign a contract with a public entity, and wanted to buy inaccessible buses for service under the contract, the contractor could arguably do so, since the contractual relationship triggering the applicability of this section did not exist at the moment of solicitation. The Department believes such a result to be inconsistent with the ADA, and the "in contemplation of" language should help to prevent it.

The NPRM also proposed that a public entity could not diminish its percentage of accessible vehicles and service through contracting out. That is, while a contractor can use existing inaccessible vehicles in its fleet for service contracted with a public entity, the public entity cannot allow this situation to diminish the overall accessibility of its fleet. A substantial majority of commenters, both transit providers and disability groups, favored including this provision. Two commenters opposed it, one on the basis that it would implicitly require retrofitting and the other on the basis that it would inhibit contracting out. The latter commenter also said it was unfair to require "no diminution" in the case of contracting out but not in the case where a public entity acquires inaccessible used buses.

While retrofit of a some vehicles is one option a public entity could choose to comply with this provision, retrofitting is not required. An entity could accelerate acquisition of new accessible buses. (Since all new bus orders must be for accessible vehicles, acceleration may not be needed in many cases, because the new accessible buses coming into a fleet in the normal course of procurement may be sufficient to maintain or improve the accessible vehicle ratio.) Alternatively, a contractor could provide some accessible buses.

Neither are we persuaded that this provision would inhibit privatization. Before the ADA, no one was required by Federal law to acquire accessible vehicles; now, everyone's acquisitions must be accessible. In this climate, it is difficult to support a conclusion that maintaining existing ratios of accessible buses will have any significant impact on the attractiveness of privatization. Much more significant economic and political forces will drive privatization decisions.

The situation of a public entity acquiring inaccessible used vehicles is distinguishable from the contracting out situation. Before a public entity may acquire inaccessible used buses, it must engage in a thorough, nationwide, good faith effort to find accessible used vehicles. There is a reasonable possibility that this search will enable it to find at least some accessible used vehicles, with which its accessibility ratio can be maintained. Moreover, since most public entities are UMTA-assisted, UMTA oversight of the acquisition process can help to address situations (which are not that likely to occur in any event) in which large purchases or leases of inaccessible vehicles would depress a recipient's accessibility ratio.

The Advisory Committee discussed a situation in which a new transit authority, which now has no vehicles, could contract out all its initial service, with the possible result that there would be no accessible service provided. The "no diminution" language would not help the situation, and some committee members favored language that would mandate a minimum level of accessible service in this situation. The Department does not believe this to be needed.

If a public entity were to take this tack, it would have a very significant paratransit obligation (e.g., virtually all persons with disabilities would be eligible). The Department, in reviewing the entity's paratransit plan, would probably insist, due to the lack of accessible fixed route service, that paratransit service be phased in quickly. The entity would probably find it less expensive and easier to ensure that it had some accessible buses in its initial service.

The Department received a number of comments about a situation in South Carolina in which urban mass transportation services are provided by a private utility. As the Department understands the situation, the utility is required by law and/or franchise condition to provide transit services in Columbia and Charleston.

One of the comments, from a member of the South Carolina Congressional delegation, citing the unprofitability of the utility's existing bus service and the difficulty the utility would have in providing paratransit service, suggested that only private entity requirements should apply to the utility. Comments from disability groups disagreed, saying that the utility provided the only mass transit service in the area and that what the commenters viewed as the utility's poor record of providing mass transit service should not be rewarded at the expense of the transit needs of individuals with disabilities in the affected cities.

According to UMTA staff and commenters, the Charleston and Columbia operations are typical examples of urban fixed route bus service for the general public. They receive UMTA assistance under sections 3 and/or 9 for similar purposes, and in similar amounts, as any other fixed route mass transit provider in cities of similar size. They operate at defecits, as do most fixed route transit operators.

UMTA funding does not flow directly to the utility. Rather, UMTA provides section 3 and/or 9 assistance to a designated recipient (a metropolitan planning organization [Macro error: Can't evaluate the expression because the name "MPO" hasn't been defined.] in Columbia, and to the city government of Charleston), which has an agreement with the utility through which the UMTA assistance is made available to the utility. Under this section of the rule, when a public entity (like an MPO or a city) enters into a contractual or other arrangement or relationship with a private entity to operate fixed route or demand responsive service, the public entity must ensure that the private entity meets the requirements that would apply to the public entity if the public entity itself operated the service.

As described above, the usual situation in which this "stand in the shoes" principle applies is the case of a public transit authority contracting out part of its service to a private transportation company. In the Department's construction, the language of the section encompasses not only a typical "contracting out" situation but also a situation like this one. In this case, there is another kind of "arrangement or relationship" between a private and public entity in which the private entity provides fixed route bus service, serving the public of an urban area, that a public entity would otherwise provide, receiving via a public entity the UMTA assistance which is intended for public transportation service.of this very kind.

The Department concludes, then, that in this South Carolina situation the utility is subject to the requirements that would apply to a public entity providing the same kind of service and receiving the same UMTA funds. These requirements include complementary paratransit as well as the acquisition of accessible vehicles.

A few commenters and committee members also suggested applying the "stand in your shoes" concept to private contracts with other private entities. That is, if a private firm primarily engaged in the business of transporting people contracts to provide service to a private firm not so engaged, then the rules governing the latter would apply to contractor, with respect to the contracted service. The Department agrees with this suggestion, which will help to clarify the obligations of private providers in a way consistent with other parts of the statute. We have added a paragraph to this effect.

§37.25 University Transportation Systems.

The NPRM proposed to cover public university-operated transportation systems under the requirements for public entities. All but three of the nearly 30 comments on this subject agreed, including several comments from universities as well as from disability groups. Two comments opposed the proposal, prinipally on the ground that such systems do not serve the entire "general public." One of the comments noted that, under section 504 or other authorities, campuses are becoming more accessible, making coverage under this rule less necessary. The commenter suggested that it would be closer to the mark to cover public universities under the same private entity requirements applicable to private universities.

It is useful at this point to review the rationale for covering public university-operated systems under the public entity requirements of the rule. The question about coverage arises from the way certain of the ADA's definitions may be read together. For example, the requirements of §222 and 223 of the ADA apply to a "public entity operating a fixed route system." A public university is clearly a public entity. Many campus bus systems fit the operational requirements of the §221's definition of a fixed route system. That is, the buses operate along a prescribed route according to a fixed schedule.

However, the definition of "fixed route system" also refers to providing "designated public transportation." This term is defined, in turn, as transportation provided to "the general public." The commenters opposed to coverage contend, in effect, that a campus bus system primarily intended to transport students, faculty and staff is not intended to provide transportation to "the general public," consequently does not involve "designated public transportation," consequently is not a "fixed route system," and therefore is not subject to the accessible vehicle acquisition and complementary paratransit requirements of §§222 and 223. The same argument would apply to demand responsive service provided by a public university or other public institution, since the definition of "demand responsive system" also includes a reference to "designated public transportation."

While the Department understands the basis for this argument, we do not construe the application of the statute in this way. The same argument would apply, perhaps with greater force, to transportation by public schools. Yet Congress specifically exempted "public school transportation" from the definition of "designated public transportation." From this we draw the inference that, in the absence of this exemption, public school transportation would have been covered under the "designated public transportation" definition. Congress could have, but did not, make a similar exemption for transportation provided by public universities or other public institutions. This argues strongly that no such exemption was intended.

Title II of the ADA appears to contemplate only two kinds of transportation provided by public entities: fixed route and demand responsive service. Nowhere does the Act suggest that there is intended to be a third category -- which might be called "none of the above" -- free from all accessibility requirements. Indeed, inferring Congressional intent to create such a category would appear sharply contrary to the overall objectives of the statute.

We would also point out that campus shuttles typically serve what can fairly be thought of as the general public of the university community. While not a mass transit system serving the entire community of Ann Arbor or Madison, the University of Michigan or University of Wisconsin bus system serves the significant subset of the community that traverses the university campuses. Even if one accepts the argument that a fixed route system must serve "the general public," it is reasonable to conclude that a typical university bus system is covered by Title II. Such an interpretation is also consistent with long-standing UMTA interpretation of similar terms under the Urban Mass Transportation Act.

Having determined that public universities are subject to public entity requirements, we turn to the question of the nature of that coverage. The Department will deem such systems to be commuter bus systems. Like other commuter bus systems, university fixed route systems generally have limited, rather than comprehensive, route structures. They serve a limited number of origins and destinations, and have limited functions. One of their primary functions is to interface with fringe parking lots and/or city transit systems that carry people to the vicinity of, but not directly to, major campus destinations.

Moreover, like commuter bus systems, campus shuttles are a kind of service which does not fit the urban mass transportation model of complementary paratransit comfortably. Given the composition of university communities, the likelihood of significant numbers of individuals in eligibility categories one and three is low. The public policy reasons for complementary paratransit in other fixed route settings have a good deal less force here. The costs of planning and implementing a complementary paratransit system at a university is less likely to be balanced by providing significant amounts of needed service than in a more typical urban mass transit context.

The planning aparatus commonly assumed to be involved with urban mass transit systems is not likely to be found in such a setting. As a result, the planning requirements of Subpart F do not fit the campus context well, making it likely that compliance with the planning requirements would be -- both for the 1500+ institutions that could be involved and for UMTA -- a paper exercise of limited value.

Requiring complementary paratransit of public universities would also create an unjustified distinction between public and private universities, which should be similarly situated in terms of meeting the transportation needs of members of their university communities. If the latter operate fixed route service, they have to acquire accessible vehicles or (with respect to vehicles with a capacity of 16 persons or less) demonstrate equivalent service. They do not have to provide paratransit. In the Department's view, the implementation of the statute is more reasonable, and more consistent with Congressional intent, if we regard public university fixed route service as commuter service. This will result in congruent requirements for public and private institutions of higher education.

One interesting comment described a student owned and operated transit system serving one state university, and expressed concern that applying public entity requirements to it could make operational costs prohibitive. The information in the comment was not sufficient to determine how under the regulation this system would be categorized. This and other unusual situations are best addressed on a case-by-case basis.

This section also restates the point that private university-operated transportation systems are subject to the provisions for private entities not primarily engaged in the business of transporting people.

§37.27 Transportation for Elementary and Secondary Education Systems.

There was no counterpart to this section in the NPRM, but we have included it for clarity. "Public school transportation" is explicitly excluded from the definition of "designated public transportation." In addition, this section provides that if a private school gets Federal financial assistance, is covered by section 504, and provides equivalent transportation service to students with disabilities, it too is exempt. (See H. Rept. 101-485, Pt. 1, at 36). Even if a private school is not exempt under the section's criteria, it is subject only to the requirements for private entities not primarily engaged in transporting people.

§37.29 Private providers of taxi service.

There was no counterpart to this provision in the NPRM, but a few comments asked for clarification on taxi service. One issue concerned whether taxi fleets should have to include some accessible vehicles. Under the ADA, private entities primarily engaged in the business of transporting people and providing demand responsive service (the category that includes taxis) are not required to buy accessible automobiles. Such entities are required to purchase accessible vans, unless the entity can demonstrate that it provides equivalent service. But nothing in the statute requires an entity to acquire a van; if a taxi company acquires only automobiles, it need never obtain an accessible vehicle.

A disability group commented that, nevertheless, a taxi company is not accessible when viewed in its entirety if it does not have access to accessible vehicles (either in its own fleet or through arrangements with other entities). Therefore, the commenter said, such access to accessible vehicles should be required. We recognize that the availability of accessible taxi service is important to individuals with disabilities, and believe that, as a matter of policy, greater accessibility of taxi fleets should be encouraged. Given the absence of specific statutory language requiring a mix of accessible vehicles in taxi fleets, we believe that to impose such a requirement based only on a general concept of "accessible in its entirety" would be inappropriate. Consequently, we have decided not to adopt this suggested requirement.

A taxi association commented that, for purposes of determining whether a taxi company was providing equivalent service, equivalency standards should be adjusted for different kinds of vehicles. The commenter suggested that vans may respond to calls less quickly than automobile taxis, for example. It is not at all clear that this premise is correct: vans appear to get around just as quickly as other vehicles. In any event, adjusting equivalency standards for different kinds of vehicles seems extremely difficult to do in a rational way, so we will not attempt it.

§37.31 Vanpools.

In the NPRM, the Department offered its preliminary view that public vanpools should be subject to the demand responsive system requirements for public entities, while private vanpools would be subject to Title III requirements. The preamble noted the legislative history statements to the effect that volunteer-driven commuter ridership arrangements were not intended to be covered under Title III.

There were a variety of comments on vanpool issues. Some commenters thought vanpools should be characterized as demand responsive, others thought they should be regarded as fixed route, and others would describe them as a hybrid category. A number of commenters emphasized that, given the economics of ride sharing, it would not take much of an increase in the price of a van or a decrease in the van's seating capacity to make vanpooling economically unattractive to participants. Some public vanpool operators mentioned that they already acquire a small percentage (e.g., 5 percent, for one system) of accessible vans for use by individuals with disabilities.

Those who commented that vanpools did not fit neatly either of the statutory categories seem closest to the truth. On one hand, a vanpool system serves a limited number of people, all of whom request to be part of the service. The routes may change over time in response to people joining or leaving a particular vanpool. The driver is a fellow commuter, not an employee of a separate public or private entity. On the other hand, no one has to make a call to get a ride on a particular day, and the van usually follows a given route of pickup and dropoff points which it attempts to meet at specific times. On balance, the Department believes that it is more reasonable to treat such a system as a demand-responsive system, meaning that it must acquire accessible vehicles unless it can demonstrate that it provides equivalent service to passengers with disabilities.

The demonstration of equivalency can be made if accessible vehicles are made available for vanpools of which a member is an individual (or membership is sought by an individual) with a disability. This is a system that public vanpool commenters say that, in effect, they use. We are not requiring that public vanpool systems acquire a certain percentage of accessible vehicles, only that they meet accessibility needs as they occur.

Private vanpools are not covered. This decision is responsive to the legislative history concerning volunteer-driven ridesharing arrangements.

§37.33 Airport Transportation Systems.

The NPRM preamble asked how the Department should regard transportation systems operated by public airports. Public airports are clearly public entities; to the extent that their transportation systems (e.g., shuttles from fringe parking lots, connector service to the metropolitan areas they serve) are fixed route, and the accessible vehicle acquisition and complementary paratransit obligations of Title II would seem to apply. Yet the relevance of these requirements -- especially paratransit -- seems questionable in the airport context.

Airport commenters noted that they typically made close-in parking spaces available to passengers with disabilities at fringe lot prices, making accessible transportation to fringe lots unnecessary. They asked that this solution be approved in the final rule. An airport operator which operates a connector service between its airports and to the metropolitan area described at length the problems that complementary paratransit could cause. Disability community commenters, on the other hand, said that there never seemed to be enough vacant close-in parking spaces, that there were often barriers between the close-in lot and the terminal, and that this solution did not address some individuals with disabilities who come to airports (e.g., persons with disabilities who arrive in a non-disabled friend's car, which does not have the proper licence plate to park in a "handicapped space"). They also pointed to the language of the ADA which categorically requires certain things of fixed route systems operated by public entities.

The Department has concluded that the most reasonable solution, and the one that most accurately reflects the real nature of airport transportation services, is to categorize airport shuttle or connector services as fixed route commuter bus service. As discussed in the preamble section on the definition of "commuter bus," service like airport shuttle and connector service shares several important characteristics with commuter bus service, while being quite different in its operating characteristics from urban mass transit bus service. The result of this categorization is that airport systems will have to acquire accessible vehicles but will not have to provide complementary paratransit.

Another form of transportation found at many airports is private shuttle or jitney service which serves a variety of locations in the metropolitan area served by the airport, typically in a route deviation or other variable mode. The Department believes that these services are best characterized as operated in a demand responsive mode by private entities primarily engaged in the business of transporting people. As such, these operators must either acquire accessible vehicles or provide equivalent service. In response to discussion at the Advisory Committee meetings, the rule points out that equivalency requirements for such operators may be met by a group of such private operators who share or pool accessible vehicles among them in a way that ensures the provision of equivalent service.

Some airports or airlines also may operate other kinds of transportation systems, such as the electric carts that are available to assist passengers in moving through concourses and mobile lounges that take passengers from a terminal to an aircraft or another terminal. Like all services to the public, these systems are subject to ADA requirements. However, the Department did not raise issues about such systems in the NPRM and received no comment about them. Nor are they specifically covered in the Access Board guidelines. It would therefore be inappropriate to issue final rules on these systems, which may present somewhat different accessibility problems than other modes of transportation. The Department intends to address these systems in forthcoming amendments to its Air Carrier Access Act and section 504 rules.

§37.35 Supplemental Service for Other Transportation Modes.

This section responds to comments on a variety of subjects. A disability commenter mentioned that the rule should specify coverage for bus service which intercity rail operators may provide from a station to a nearby city. A commuter rail operator said that its dedicated bus service to the rail system (limited to rail users, with through ticketing) should be regarded as a commuter bus system. Other commenters mentioned situations in which entities such as cruise ship operators provide a shuttle or connector service (e.g., between an airport and a dock).

For the same set of reasons cited in the discussions of the definition of commuter bus and airport transportation systems, we have determined that it is reasonable to categorize the systems run by intercity or commuter operators as fixed route commuter bus systems. The privately operated systems operated by public accommodations would be regarded as operated by private entities not primarily engaged in the business of transporting people.

§37.37 Other Applications.

The first issue considered in this section is that of private entities which have a relationship with a public entity other one covered under the "stand in the shoes" provision of §37.23.. For instance, a private bus company may get an operating subsidy from a state, a jitney service may have a franchise from a city to operate on a certain route, and taxis and other private transportation services are often regulated by state and local governments.

Comments from disability groups generally urged that, particularly in the case of subsidies, these entities be subject to public entity rules. Without the subsidies, the comments reasoned, the service would not be economical to provide, so the existence of the service becomes, to a large extent, a public creature. Comments from private transportation providers took the opposite tack, saying that receipt of a subsidy did not transmute a private entity into a public entity and that application of public entity requirements (especially complementary paratransit) would lead to the abandonment of service.

In the Department's view, the statute requires that (aside from the "stand in the shoes" situation of _§37.23) we look to the nature of the entity itself, not to its relationship with other entities, to determine the proper provisions to apply. The statute itself defines a public entity. Something that is a private entity, and hence does not come within the public entity definition, cannot appropriately be categorized as a public entity under the rule. Consequently, this section provides that a private entity that receives a state or local subsidy or a franchise from a public entity, or is regulated by a public entity, is not for that reason regulated under Title II.

Public accommodations subject to the DOJ Title III regulations (e.g., hotels, car rental agencies, historical or theme parks) are the classic examples of private entities not primarily engaged in the business of transporting people. They do, in many instances, provide shuttles and other transportation services to people. The only question to consider is whether these systems are demand responsive or fixed route.

The only comments to focus on this issue were from two major car rental organizations. They argued that the regulation should explicitly provide that systems organized like theirs were demand responsive. Their arguments were based principally on the premise that a rental car reservation is the equivalent of a user-initiated request for shuttle service and on factual assertions that the companies in question do not in fact have schedules or set intervals for their shuttle services. During a discussion of this issue in the Advisory Committee involving one of the commenters, disability group representatives questioned the accuracy of these assertions, based on their experience as customers.

The Department is very willing to believe that some car rental shuttles operate in a demand responsive mode. As the two commenters themselves noted, however, some car rental shuttles may operate as fixed route systems. The Department has not made an independent investigation of the facts concerning the variety of shuttles operated by car rental agencies or other public accommodations. The issue is likely to be affected by many site-specific circumstances.. It is not clear that, as a general matter, a call to reserve a rental car can fairly be equated to a call reserving van transportation. The final rule recognizes the need for case-by-case determinations, and provides that demand-response or fixed routes rules, as appropriate, applying each case. The possibility of variety in specific operational circumstances is too great to allow for an across-the-board rule.

Another situation about which a few commenters inquired concerns conveyances people ride, not so much as a means of getting from Point A to Point B, but as a recreational activity or close adjunct to a recreational activity. Amusement park rides, ski lifts, and historic trolley or rail cars operated in museum settings are examples of such conveyances. In our view, it makes sense to regard these conveyances not as "transportation" at all, but simply as one part of public accommodations provided by the entities in question. This does not mean that these conveyances escape ADA regulation; DOJ regulations under Title II or Title III of the ADA cover them.

Transportation services offered by employers (e.g., motor pool vehicles, employer-sponsored van pools or shuttle services which are limited to employees) are another category this section clarifies. Such employee transportation is not part of a public accommodation or designated or specified public transportation. It does not come within the scope of §§222. 224, 302 or 304 of the ADA. It would, however, be covered by Title I of the ADA (and, with respect to public entitites, Title II as well).since it is a term, condition, or benefit of employment. The EEOC and DOJ Title II ADA rules cover such services.

One commenter asked that the rule specifically mention that the transportation provisions of the ADA do not apply to religious organizations. We have done so; such services are not covered by the ADA.

The Department also was asked for clarification of situations in which a parent company is not primarily engaged in the business of transporting, but a subsidiary or division is primarily so engaged. To which organization does one look in deciding which set of ADA requirements apply? The Department believes that it is most consistent with the ADA to look at the entity that is actually providing the transportation -- even if this entity is a smaller part or subsidiary of a larger organization. When there is not actually a separate subsidiary company involved, a "primarily engaged" segment of the larger company that is operationally distinct from the rest of the company is relevant for this purpose.

The ADA defines intercity rail as service provided by Amtrak. There may be present or future rail systems which provide service having all the characteristics of intercity service except operation by Amtrak. For example, planning is now underway for a number of high-speed rail systems. In addition, DOT is aware of a private intercity rail service which attaches private rail cars to Amtrak trains on some routes. Other private intercity rail services could be created in the future.

High-speed rail service, as it is envisioned, shares so many operating characteristics with intercity rail service that we believe it is sensible to apply intercity rail requirements to it. For high-speed rail systems operated by public entities, the rule would apply intercity rail requirements to such systems. For private rail systems, §37.107 governs acquisition of rail cars, while facilities and other matters are subject to DOJ Title III rules. Both for rail cars and rail facilities, these requirements apply to private rail systems the requirements of ATBCB guidelines.

Subpart C - Transportation Facilities.

§37.41 Construction of transportation facilities by public entities.

Section §37.41 contains the general requirement that all new facilities constructed after January 26, 1992, be accessible to and usable by individuals with disabilities. This provision tracks the statute closely, and is analogous to provisions in the DOJ regulations. Section 226 of the ADA provides little discretion concerning this requirement. There were no comments on this provision and the final rule makes no changes to the proposal.

§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 undertaken to an existing facility, to the maximum extent feasible, result in the altered area being accessible to and usable by individuals with disabilities, including persons who use wheelchairs. As noted in the proposed rule, the provisions follow closely those adopted by the DOJ, in its regulations implementing title III of the ADA (49 CFR Part 36 July 26, 1992, 56 FR 35544). Also noted in the proposed rule, we made minor changes to the DOJ language for purposes of specific references to transportation facilities -- e.g., references to intercity and commuter rail stations.

As proposed, the section would require specific activities whenever an alteration of an existing facility is undertaken. These include:

(1) 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.

(2) Alterations to drinking fountains, telephones, and restrooms do not have to be completed if the cost and scope of making them accessible is disproportionate.

(3) The requirement goes into effect for alterations begun after January 25, 1992.

(4) The term "maximum extent feasible" was defined to mean that all changes that are possible must be made.

(5) Primary function was defined to mean a major activity for which the facility is intended. The proposed rule contained a non-exclusive list which included the following areas in the primary function area: ticket purchase and collection areas, train or bus platforms, baggage checking and return areas, and employment areas

(6) The proposed rule defined "path of travel" to mean 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. and;

(7) The final rule proposed a range of costs for determining when an alteration is disproportionate. The three percentages were 10 percent, 20 percent and 30 percent.

The preamble to the proposed rule also stated that the Department would remain consistent with the DOJ in this area (and forward any comments on this section to them for review.). Over 25 comments were submitted on this section, principally from older rail providers and disability groups. The provision that drew the most comment was the percentage to be used to determine disproportionality. The majority of commenters (principally transit providers) recommended that the figure be 10 percent. Those recommending 10 percent indicated that this figure should be used since many of the providers will be using all available resources to meet the key station requirements under the ADA.

Several commenters (including disability groups and some transit providers) recommended either 20 or 30 percent. One person with disabilities recommended that no percentage by used, and that the exception to full accessibility be granted only when undue financial hardship is demonstrated. Some transit industry commenters recommended that the disproportionality rule apply as a percentage of the passenger service area that is scheduled for alteration (and not apply to alterations of railbeds and the like).

A person with a disability expressed concern over how costs are counted in determining disproportionality. This concern is what might be called "goldplating", lumping the entire cost of a change into the cost of making the item accessible (e.g., counting the cost of complete new doors and frames instead of counting only the cost of replacing smooth knobs with levers). Another commenter stated that providers who do not charge a fare for persons using wheelchairs or the blind should not be required to make ticket purchase areas accessible.

As we said in the preamble to the proposed rule, the Department is following the decision reached by the DOJ in determining an equitable percentage of work to be done. DOJ, in its final rule for public accommodations, specifies that the applicable percentage shall be 20 percent of the alteration. The Department continues to concur in the rationale and result promulgated by DOJ, and we accordingly have adopted 20 percent in our final rule as well. We agree with the comment, however, that the base changes should be based on changes to the passenger service area that is scheduled for alteration, and that "goldplating" not be allowed. The preamble to the DOJ final rule contains a discussion of this decision, and we recommend it for more background on the decision.

The requirement to make changes to the maximum extent feasible drew several comments as well. One commenter recommended that the definition be expanded beyond the limited area of physical impossibility. A person with disabilities thinks that much of the difficulty with the concept of "feasibility" could be avoided if "such decisions at the local level include as participants representatives of the disabled community. There seems to be an inordinate amount of reluctance to consult persons within the disabled population, but many of us have a great deal of skill at finding the most cost effective method for getting rid of architectural barriers."

The Senate Report provides guidance on what the phrase "maximum extent feasible" means --

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)

The Department has not made changes to the final rule regarding the term "maximum extent feasible". Our definition of the term is consistent with that of the DOJ, whose rationale we concur with and support.

The definition of "to the maximum extent feasible" contained in the DOJ rule also points out that "[I]f providing accessibility in conformance with this section to individuals with certain disabilities (e.g., those who use wheelchairs) would not be feasible, the facility shall be made accessible to persons with other types of disabilties (e.g., those who use crutches, those who have impaired vision or hearing, or those who have other impairments." (28 CFR 36.402(c), 56 FR 35600, July 26, 1991).

A few commenters recommended that we add waiting areas to the list of examples included to show the kinds of areas included in "primary function". The Department has added waiting areas. Finally, several comments asked the Department to define the term "begin", in the context of "begin an alteration" that is subject to this provision. Other commenters noted that we used the term "begin" and "make" in the same section and sought clarification whether they mean the same.

The final rule includes a definition of "begin" in the context of alterations to mean when a notice to proceed or work order is issued. Two terms are used (instead of only notice to proceed as 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.

The Department has removed the word "make" from the text of this provision and replaced it with "begin" to avoid confusion.

§37.45 Construction and Alteration of Transportation Facilities by Private Entities.

This section provides a cross-reference to the DOJ regulations that implement title III of the ADA (28 CFR Part 36), since construction or alteration of a transportation facility by a private entity is covered by the DOJ regulation, not DOT's. There were no comments on this section and no change has been made to the proposed rule.

§37.47 Key Stations in Light and Rapid Rail Systems.

§37.51 Key Stations in Commuter Rail Systems.

The issues and comments related to key stations were very similar for both these sections, so we discuss them together.

The NPRM set out several criteria for rail operators to consider in designating key stations. Despite an explanation to the contrary in the preamble, a number of commenters appeared to think that the criteria were mandatory (i.e., that every station that fit one of the criteria was required to be designated as a key station). We have added language to the rule to clarify further the point that the criteria are to be taken into consideration, but are not mandatory criteria in this sense.

One commenter asked that if the local community agreed that there were no key stations on a rail line that needed to be accessible (e.g., because there was accessible bus service in the area), it should be regarded as acceptable not to make key stations accessible (or at least to apply the extended timetable). The Department does not agree with this suggestion. Key station accessibility to commuter rail lines is required by the statute, regardless of the accessibility of bus service in the area (indeed, under the statute, all bus service eventually will be accessible). The 30-year extended time frame is available only where extraordinarily expensive changes are required to make a station accessible.

One commenter asked that pre-existing local agreements related to the designation of key stations be honored under the rule. The cases of such agreements in New York and Philadelphia are handled separately (see §37.53). Otherwise, the full planning process called for by the ADA applies.

There were relatively few comments on the specifics of the key station criteria themselves. One that came up in several comments was that "unless close to another accessible station" should be added to the criterion concerning high ridership stations We have added this language and note that "close" is a relative term. What is close in downtown Boston, for example, may not be close in a more suburban setting.

There were a number of comments concerning the key station plans. Under the ADA, rail operators must prepare such plans and forward them to the Department. DOT approval is not required, however. Some commenters, appearing to believe that DOT approval is necessary, said that DOT should commit to reviewing the plans within 90 days. While expeditious review of plans is always desirable, the Department does not believe it is necessary to commit to a specific review deadline, particularly for a plan it need not approve.

Under the statute, key stations must be made accessible by July 26, 1993. However, extensions of up to 30 years (light and rapid rail) or 20 years (commuter rail) can be made for "extraordinarily expensive" accessibility modifications. There were a substantial number of comments on how these provisions should be construed.

Some disability group comments suggested that, in key stations, changes that were not themselves extraordinarily expensive should be made by July 1993, even in stations which had been granted extensions of the deadline based on the need for extraordinarily expensive changes. Rail operators' comments disagreed, some stating that non-extraordinarily expensive modifications should not have to be made by July 1993 if the key station plan, with public participation, provides a different timetable. It was unrealistic to have to make these modifications by that date, some felt, so DOT should prioritize the modifications. Another suggestion was that the "extraordinarily expensive" standard should be applied system-wide rather than on a station-by-station basis. That is, the cumulative costs of making changes that, considered individually, are non-extraordinarily expensive, should be able to be viewed as extraordinarily expensive and subject to the extension. Finally, there were comments from both disability groups and rail operators concerning the use of mini-high platforms to make key stations accessible. The former thought that the use of mini-highs should be regarded as non-extraordinarily expensive and the latter disagreed.

As in many other portions of the ADA, the statutory language on this subject is quite specific and explicit, and the Department has the responsibility to implement the provisions as Congress wrote them. Under §227(b)(2)(B) of the statute, the Department may extend the July 1993 accessibility deadline for up to 30 years for light and rapid rail "key stations...which stations need extraordinarily expensive structural changes to, or replacement of, existing facilities." For commuter rail systems, under §242(e)(2)(A)(ii)(II) of the ADA, an extension of up to 20 years may be granted "in a case where the raising of the entire passenger platform is the only means available of attaining accessibility or where other extraordinarily expensive structural changes are necessary to attain accessibility." While the wording of the two provisions is slightly different, the effect, under the Department's construction, is the same.

Under the statute, for light and rapid rail, extensions of the deadline for accessibility may be granted for "key stations...which stations" need extraordinarily expensive changes. For commuter rail systems, an extension may be granted "in a case where" raising the platform or other extraordinarily expensive modifications are necessary to attain accessibility. Accessibility is a term that includes both extraordinarily expensive and non-extraordinarily expensive changes. If an extension is granted because extraordinarily expensive changes are needed to the station, the extension consequently applies to all accessibility modifications for that station.

It is clear from the statutory language and from the legislative history that the statute includes only a "narrow exemption [to the July 1993 deadline] for facilities where the only means of creating accessibility would be to raise the entire platform...or install an elevator." (S. Rept. 101-116 at 56). The Department believes that it is reasonable to construe the statute to permit changes other than raising the entire platform or installing an elevator as potentially being "extraordinarily expensive," but only if their cost and magnitude are in the same range as elevator installations or platform raisings. For example, if the cost of installing a mini-high platform is in that range, it could be considered an extraordinarily expensive change. If not, then the mini-high platform would have to be installed by July 1993.

The statute clearly requires accessibility by July 1993 except for stations where an "extraordinarily expensive" extension is granted. Just as this rule cannot amend the statutory mandate, a key station plan, even if warmly endorsed by all interested parties, cannot amend the statutory mandate. In stations where the compliance deadline is not extended, operators are required to make accessibility modifications by July 1993. It should be noted as well that, in determining extension periods for light and rapid rail station, the Department has an obligation under the ADA to ensure that at least two-thirds of the stations are accessible within 20 years.

The Department also construes the extension provision to be station-specific in its effect. Extensions are possible for "key stations...which stations" need extraordinarily expensive modifications or "in cases" where the entire commuter rail station platform must be raised. The fact that the cost of all modifications throughout the system other than platform raisings or elevator installations, taken together, may be as expensive as one or more platform raisings or elevator installations, does not create a "case" or a "station" which needs extraordinarily expensive changes. To adopt this comment would be to expand the scope of the extension provision beyond what the statute provides.

One comment from a rail operator said that, in non-key stations, it should not be necessary to make accessibility modifications. The statute requires that, when facilities are altered, certain accessibility modifications be made (see §37.43). This is true of all facilities, not just key stations. Another comment suggested that a lower "disproportionality" percentage apply to key station modifications than to other alterations. This comment misunderstands the relationship between the alteration provisions of §37.43 and this section. As the commenter says, the key station requirement is a special retrofit requirement. It tells rail operators to make their key stations accessible, even where it is extraordinarily expensive to do so. The disproportionality provision of §37.43 does not apply to key station modifications at all; if it did, no one would ever have to raise a platform or install an elevator. Disproportionality applies to modifications triggered by alterations made by the entity at its discretion, not to station retrofits mandated by the key station requirement.

Comments from disability groups stressed the importance of public participation and disability community involvement in key station planning. The regulation clearly requires this involvement.

§37.49 Designation of Responsible Persons for Intercity and Commuter Rail Stations.

This is one of the more obscure and complicated provisions of the statute. Its intent is to allocate responsibility for making accessibility modifications "on an equitable basis" among public entity station owners and Amtrak and commuter railroads that operate through a station (H. Rept. 101-485, Part 4). The House Energy and Commerce Committee recommended that the Department apply "the principle of 'costs to the cost-causer'" and take other sound economic, transportation, and public policy considerations into account (Id.). The statute clearly exempts private entities (e.g., freight railroads) from any share in the legal and financial responsibility for accessibility modifications.

The very specific statutory language defining "responsible person" may well result in inequitable treatment among public entity station owners and passenger railroads in some situations, however. In the situation where a public entity owns more than 50 percent of the station, that entity is the responsible person for the total costs of station modification, while passenger railroads (who may own 49 percent of the station and operate train service through it) are not obligated for any share of the responsibility. In the situation where a private entity owns more than 50 percent of the station, by contrast, a public entity which owns 49 percent of the station is not obligated for any portion of the responsibility. Only railroads running trains through the station are obligated. In the third situation, in which no one owns more than 50 percent of the station, both public entity owners and railroads operating trains through the station have obligations.

In attempting to devise regulatory provisions allocating responsibility in an equitable manner, the Department must work within these statutory constraints. For this reason, we cannot make changes to accommodate comments that private railroads should be obligated for a share of the responsibility or that public entities owning more than 50 percent of a station should, as a matter of regulation, be entitied to contribution from railroads running service through the station.

The NPRM proposed allocating costs among railroads using passenger boardings, in the belief that this measure most aptly captures cost causation. There were a few comments on this proposal. Two suggested that the Department should not set forth any allocation formula, for fear it would skew negotiations among the parties. Instead, one of these comments said, we should require an agreement among the parties, with DOT arbitration in the case of impasse. The statute requires our regulations to allocate responsibility. Moreover, while we strongly believe parties should negotiate an agreement concerning responsibility, a DOT arbitration role in a variety of local disputes among parties seems impracticable.

Other comments pointed to the multiplicity of ownership arrangements in stations and suggested that any allocation formula is bound to fit many situations awkwardly. This may well be true, and is further reason to encourage parties to negotiate. However, an allocation standard based on cost causation is called for under the ADA, and we are obligated to establish such a mechanism. No comments suggested that using passenger boardings was not reasonably related to cost causation, or that some other criterion would work better.

Finally, a commuter rail operator said that in one situation, it owned a station which Amtrak also uses. The station would not be a key station, and so must become accessible only because it is an intercity station. In this situation, the commuter operator said it should not be a responsible person. As mentioned above, the statute is quite clear on who is a responsible person, and this may be a situation in which the effect of the clear provisions of the statute seems inequitable to one of the parties. Again, negotiation between the parties may be helpful.

In the interest of greater equity in situations where no party owns more than 50 percent of a station, the Department has made one modification to the proposed rule. That modification divides the responsibility for such a station in half between public entity owners (whether or not they are railroads running service through the station) and railroads running service through the station (whether or not they also own part of the station). Responsibility among the former is divided based on proportion of station ownership; among the latter, responsibility is allocated on the basis of passenger boardings. A party that is both a station owner and a railroad running through the service would have a portion of the responsibility on each side of the equation. The purpose of this modification is to give appropriate weight to both sets of factors that count in determining responsibility.

§37.53 Exception for New York and Philadelphia

This section formally recognizes that agreements concerning key station accessibility in New York City and Philadelphia have identified key stations, which designations were intended to be recognized as complying with ADA key station selection requirements.

As suggested by a comment from one of the transit providers involved in the New York agreement, the entities involved can limit their key station planning process to issues concerning the timing of key station accessibility. This entity also commented that modifications already made under their agreement should be grandfathered, so that they do not need to be re-modified to conform to Access Board guidelines. The section references §37.9, which addresses this concern. Under §37.9, key station accessibility alterations conforming to specified prior standards do not have to be re-modified, and alterations begun after January 26, 1992 (including forthcoming key station modifications under the New York and Philadelphia agreements), must meet the requirements of Appendix A.to this Part.

§37.55 Intercity Rail Station Accessibility.

There were few comments concerning this section, which is taken directly from the statute. The final rule version is not changed from the NPRM.

§37.57 Required cooperation.

There were few comments concerning this section, which is taken directly from the statute. The final rule version is not changed from the NPRM.

§37.59 Differences in Accessibility Completion Date Requirements

Commenters to various facilities accessibility provisions of the NPRM noted that the same station, or portions of the same station, may have different accessibility completion date requirements. For example, if a station serves both rapid and commuter rail systems, there is a potential for the accessibility deadline to be extended to 2010 for commuter purposes and 2020 for rapid rail purposes. A similar situation could occur if an extension were granted to a station for commuter rail purposes but not for rapid rail purposes, or if extensions of different lengths (e.g., 5 and 10 years) were granted. Commenters on this subject (mostly from the disability community) said that in such a case, the earlier deadline should prevail.

Though in considering extensions the Department will attempt to avoid such situations, it is reasonable to have a regulatory provision clarifying the matter. The principle at work here is that if part of a station can be made accessible after another part, the "late" part of the work should not get in the way of people's use of the "early" part. Consequently, common elements of the station, parts of the facility serving the rail system with the earlier completion date, and an accessible path from common elements to the portion of the facility serving the rail system with the earlier completion date would have to be completed by the date for the "early" portion of the work.

§37.61 Public Transportation Programs and Activities in Existing Facilities

Proposed §37.35 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, the program or activity 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. There were several comments submitted on this proposal, making specific suggestions about what this nondiscrimination provision should include. Several commenters recommended that the Department prescribe what must be done in each facility to meet this non-discrimination provision. An identical list of proposed modifications was submitted by two organizations. Their suggestions include:

Farecards, schedules, and other services which are available in a facility that is not wheelchair-accessible must be made available in some other way, if the farecards, schedules, and other services pertain to portions of the transit program which could be used by such persons.

  • Some means of edge detection on rail platforms should be provided for the safety of all patrons including those with visual impairments, in compliance with the Architectural and Transportation Barriers Compliance Board (Access Board)'s proposed transit facility standards, 10.3.1 part (12).
  • Adequate lighting should be provided to assist all patrons including those with visual impairments, in compliance with the Access Board;'s proposed transit facility standards, 10.3.1 part (12). - Telecommunication Display Devices (TDD's) should be available for use by deaf and speech-impaired persons, in compliance with the ATBCB's proposed transit facility standards, 10.3.1 part (13). - Signage should be accessible to people with visual impairments, in compliance with the ATBCB's proposed transit facility standards, 10.3.1 parts (6), (7), and (8).
  • Pathways should be continuous to assist all patrons including those with visual and ambulatory impairments, in compliance with the ATBCB's proposed transit facility standards, 10.3.1 part (14).
  • Public address systems and clocks shall be accessible to assist all patrons including those with sensory impairments in compliance with the ATBCB's proposed transit facility standards, 10.3.1 parts (15) and (16).

Other comments included more general recommendations that certain accessibility features be provided, such as edge detection on rail platforms, adequate lighting, TDD's, signage, and public address systems and clocks.

We agree with the commenters that these or similar changes should be done to make facilities more "user friendly". We do not, however, believe the Department should 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 do not believe, however, that there is one correct list. We encourage entities to find this another area which benefits from their commitment to far-reaching public participation efforts.

Subpart D - Acquisition of Accessible Vehicles by Public

Entities

§37.71 - Purchase or Lease of New Non-Rail Vehicles by Public Entities Operating Fixed Route Systems

Section 37.51 of the NPRM set out the basic acquisition requirements for a public entity purchasing a new vehicle. The proposal was the same as the final rule issued by the Department on October 4, 1990, to implement the vehicle acquisition requirements that went into effect August 26, 1990. Generally, the section requires any public entity which purchases or leases a new vehicle to acquire an accessible vehicle. There is a waiver provision if lifts are unavailable and certain other criteria are met. The proposed rule indicates that any waiver would be for a temporary period only, and that the vehicles would have to be retrofitted with the lifts as soon as they were available.

In the April proposal, the Department sought comment on two proposed rule provisions. The first would require a public hearing before a waiver request is submitted to UMTA. The second issue flagged for comment was the possible action to be taken by the Administrator in cases where an entity fraudulently applies for a waiver; sanctions include cancelling the waiver and other appropriate action.

The comments almost unanimously supported requiring a public hearing before public entities could request a waiver. Although many fewer persons commented on the sanctions provision, those who did comment agreed with the provision. Both the public hearing provision and possible sanctions provision have been retained in the final rule. There is no change in the proposed rule language.

§37.73 - Purchase or Lease of Used Non-Rail Vehicles by Public Entities Operating a Fixed Route System

The NPRM provision is almost identical to the October 4, 1990, final rule implementing the acquisition requirements of the ADA that went into effect on August 26, 1990. As with new vehicles, an acquisition of a used vehicle would have to be for an accessible vehicle. The proposal included an exception, for situations is which the transit provider makes a good faith effort to obtain accessible used vehicles but does not succeed in finding them. The section specifies what would constitute a good faith effort, and requires that the entity retain for two years documentation of that effort, and that the information be available to UMTA and the public.

Three comments were submitted on this provision. One commenter noted agreement with the section as written. Two comments wanted the Department to specify that good faith efforts should include notification of the entity's advisory committee, retention of records for 5 years, and establishment of a national clearinghouse for used vehicles. While the Department agrees that, in practice, it may be a good idea for an entity to retain these records for five years, we believe that a shorter period is adequate to ensure compliance with the provision. However, in order to ensure that records remain on file at the time of UMTA's triennial reviews of transit authorities, we are extending the record retention period to three years.

With regard to the request that the entity be required to notify its "advisory committee", we also do not think that this is necessary. 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 maintain a dialogue with the affected community.

We note, however, that the regulation does not specify the establishment of an advisory board per se. We do require effective communication on the part of all concerned. Finally, at this time the Department has not provided for any type of national clearinghouse. There are several industry publications which provide adequate opportunity for this type of information sharing.

§37.75 - Remanufacture of Non-Rail Vehicles and Purchase or Lease of Remanufactured Non-rail Vehicles by Public Entities Operating Fixed Route Systems

The April 4, 1991, proposed rule provision is the same as the final rule provision of October 4, 1990, implementing the provisions of the ADA that went into effect on August 26, 1990. Generally, this section tracks the statute rather closely, and contains the following provisions.

First, it requires any public entity operating a fixed route system to purchase only an accessible remanufactured vehicle if it is remanufactured after August 25, 1990. If the entity contracts or undertakes the remanufacture after August 25, 1990, the remanufacture must be accessible.. The ADA and its legislative history make it clear that remanufacture includes changes to the structure of the vehicle that extend the useful life of the vehicle for five years. It clearly is not intended to capture things such as engine overhauls and smaller repairs.

The statute and the rule include an exception for the remanufacture of historical vehicles. This exception applies to the remanufacture of or purchase of a remanufactured vehicle in a case where (1) the vehicle is of historic character; (2) it 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 its historic character. 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 made.

Of the two comments received, one supported the provision, and the other said UMTA should prohibit the acquisition with federal funds of any remanufactured vehicle that is not accessible.

While we agree that all vehicles should be accessible to the extent possible, the statute is very clear concerning this exception. The final rule remains unchanged from the proposal.

§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 must 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. The April 4, 1991 proposed rule is the same as the October 4, 1990 final rule which promulgated the immediately effective acquisitions requirements of the ADA.

Fifteen comments were submitted on this section, nearly all referring to vanpools. The most consistent response -- from transit organizations -- was that vanpools are a unique type of entity and should be treated as such. Others commented that some vanpools are not true public entities, since the drivers are not employees of the transit system. One respondent noted the difficulty of reconciling requirements for vanpool drivers, who take on voluntary responsibility, with requirements for drivers/operators in other forms of transit to operate lifts and securement devices.. Some commented on the cost-sensitivity of vanpools and the negative impact if all vehicles must have lifts. A few respondents asked that a certain percentage of the vanpool vehicles be fitted with lifts. Others suggested that lifts be made available upon request. For the opposing point of view, two agreed with the written definition and another thought vanpools should be treated as demand responsive.

The Department has established a separate section on vanpools (§37.31), and these comments are discussed in the context of that section, earlier in this preamble.

One commenter requested clarification of what "accessible when viewed in its entirety" means in the context of a demand responsive system. First, it is important to note that this exception applies only to demand responsive systems (and not fixed route systems). The ADA's concept of "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. For example, the time delay between a phone call to access the demand responsive system and pick up the individual is not to be greater because the individual needs a lift or ramp or other accommodation to access the vehicle.

Consistent with §224 of the ADA and its legislative history ( see, e.g., H.Rept. 101-184, Pt.2, at 95; S.Rept. 101-116 at 54)., 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 made no changes to the proposed rule.

§37.79 - Purchase or Lease of New Rail Vehicles by Public Entities Operating Rapid or Light Rail Systems

This section echoes the requirement of §37.71 on non-rail vehicles by requiring that all new rail cars be accessible. The April 4, 1991 proposed rule provision is the same provision that appeared in the October 4, 1990 final rule implementing the acquisition requirements of the ADA that went into effect on August 26, 1990. The only comment on this section was that newly purchased or leased monorails and people movers also should be required to be readily accessible to persons with disabilities, as are rapid or light rail systems.

These types of systems are covered under Part 38, Subpart H, Other Vehicles and Systems. A detailed discussion of them may be found in the preamble to the Access Board's guidelines.

§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 purchasing a used rail vehicle. The requirements and standards are the same as those specified for non-rail vehicles in sec 37.73. There were no comments on this section and the section remains unchanged.

§37.83 Remanufacture of rail vehicles and purchase or lease of remanufactured rail vehicles by public entities operating rapid or light rail systems.

This section parallels the remanufacturing section for buses, including the exception for historical vehicles. The Department sought comment on two issues. First, should there be a regulatory provision requiring that, where a historic vehicle exception is requested, the applicant make good faith efforts to ensure accessibility to the vehicles by means that would not significantly alter their historic character?

Second, the Department sought comments on whether a vehicle operated within the confines of a museum, where it is an attraction rather than simply a means of getting around to other attractions should be considered to fall within the definition of designated public transportation at all. This second issue and comments submitted on it are discussed in this preamble under §37.37, other applications.

Four out of six commenters on this section supported the inclusion of a specific good faith provision in the regulation. The Department has considered these comments, and has decided to retain the language as it existed in the proposed rule. The Department does not feel that lack of good faith will become a problem, since the exemption from making a vehicle accessible is only to the extent that the changes will damage the historic character of the vehicle. All other changes will be required to be made.

One commenter wanted clarification that remanufacturing applies only to repairs done to extend a vehicle beyond its normal life, not to the normal mid-life overhaul. This is a correct understanding. Remanufacturing extends the useful life beyond what its normal useful life would have been. The normal useful life includes within it the mid-life overhaul.

§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 vehicle 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. The section basically parallels the acquisition requirements for buses and other vehicles. The final rule remains unchanged from the proposed rule.

§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 vehicles. Like the provisions for other modes of transportation, the ADA does not afford the Department much discretion in this area. Two commenters endorsed the good faith provision in the proposed rule. One state railroad administration stated that this section does not take into consideration reciprocal lease agreements between Amtrak and certain commuter rail authorities, which allow the parties to lease rail vehicles to and from each other at well below market rates, usually for short-term use. It would not be reasonable for either party to undertake a solicitation process or nationwide search when the vehicle is needed immediately in emergencies, or will be used for less than 30 days. Such lease agreements have been in place for several years, and would not be used to circumvent ADA. since all parties involved are required to meet the "one car per train" provision.

The good faith efforts provision has been retained. With regard to the comment about commuter railroads leasing for a very brief amount of time cars from Amtrak, the Department does not believe the statute allows flexibility in this area. The Department will work with railroads to attempt to find means of meeting the requirement in a way that does not unduly delay transactions.

§37.89 Remanufacture of Intercity and Commuter Rail Cars.

This section requires generally that remanufactured cars be made accessible, to the maximum extent feasible. Paragraph (c) defined "feasible" 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."

This section also reflects two statutory differences from its counterpart for light and rapid rail cars. First, the extension of useful life needed to trigger the section is ten rather than five years. Second, there is no historic vehicle exception.

Amtrak submitted the only comment on this section, requesting that the determination of feasibility include considerations of cost and the purposes for which the car is being remanufactured. Under the statutory definition (see also H. Rept. 101-485, Pt. 4 at 51), it would not be appropriate for the Department to introduce cost considerations into the equation. If a car is being remanufactured for purposes other than to be a passenger rail car (i.e., would not be used to carry revenue passengers), then it would not be subject to requirements for passenger rail cars.

§37.91 Wheelchair Locations and Food Service on Intercity Rail Trains.

This provision is taken directly from the statute. We have made two modifications in response to comments. First, we have removed references to "securing" wheelchairs in recognition of the fact that securement devices are not required on rail cars. Second, the NPRM referred to intercity rail operators not being required to provide more than a certain number of wheelchair locations on a rail car. A comment pointed out that the statute provides that the rail operator is not permitted to provide more than this number of wheelchair locations (in order to avoid concentrating all the wheelchair users in one car, which would be contrary to the notion of providing service in an integrated setting). We have changed the wording accordingly.

§37.93 One Car Per Train Rule.

This section implements the statutory directive to all rail operators (light, rapid, commuter and intercity) to have at least one car 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 specifies the general requirement that must be met. 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 car that is retrofitted to meet the requirement must look like has been decided by the Access Board. These standards are being adopted as regulation today by the Department and are contained in Part 38 of this rule. A more complete discussion of what the vehicles will have to look like can be found in the preamble discussion of Part 38 to this document .

§37.95 Ferries and Other Passenger Vessels.

As at the NPRM stage, this section continues to be reserved. Ferries and passenger vessels operated by public entities are covered by the ADA, and subject at this time to DOJ Title II requirements as well as §37.5 of this Part. The Department thanks commenters on this subject for providing information and leads on where to find additional information. The Department also is planning a study with a consultant to provide data on this subject. We anticipate further rulemaking to create appropriate requirements for passenger vessels.

Subpart E - Acquisition of Accessible Vehicles by Private

Entities

§37.101 Purchase or Lease of Vehicles by Private Entities Not Primarily Engaged in the Business of Transporting People.
§37.103 Purchase or Lease of New Non-Rail Vehicles by Private Entities Primarily Engaged in the Business of Transporting People.
§37.105 Equivalent Service Standard.
§37.107 Acquisition of Passenger Rail Cars by Private Entities Primarily Engaged in the Business of Transporting People.

These sections are not substantively changed from the NPRM, and (aside from comments on Access Board guidelines for vehicle accessibility, which are discussed in the preamble to the Access Board guidelines themselves and Part 38) were not the subject of comment. They do, however, implement one of the more complex portions of the ADA, and the Department has restructured the sections to improve clarity, with labeled paragraphs separating out each of the various subcategories that affect what a given entity is required to do. In addition, the equivalent service standard is separated out and put in its own section, rather than being restated for each category, as in the NPRM.

§37.109 Ferries and other Vessels.

As with the NPRM, this section is reserved in the final rule. The reason for this action is that, at the present time, the Department lacks sufficient information to determine what are reasonable accessibility requirements for various kinds of passenger vessels. We note that the DOJ has determined that passenger vessels encompassing places of public accommodation (e.g., cruise ships, floating restaurants) are subject to the general nondiscrimination and policies and practices portions of its Title III rule (Subparts B and C of 28 CFR Part 36). The Department of Transportation anticipates working with the Access Board and DOJ on further rulemaking to define requirements for passenger vessels. The Department thanks commenters who provided information on this subject, which we will be using in this effort, along with information generated by a consultant the Department is engaging to look into these matters.

The Department does want to make its clear its view that the ADA does cover passenger vessels, including ferries, excursion vessels, sightseeing vessels, floating restaurants, cruise ships, and others. Cruise ships are a particularly interesting example of vessels subject to ADA coverage.

Cruise ships are a unique mode of transportation. Cruise ships are self-contained floating communities. In addition to transporting passengers, cruise ships house, feed, and entertain passengers and thus take on aspects of public accommodations. Therefore cruise ships appear to be a hybrid of a transportation service and a public accommodation. As noted above, DOJ covers cruise ships as public accommodations under its Title III rules.

In addition to being public accommodations, cruise ships clearly are within the scope of a "specified public transportation service." The ADA prohibits discrimination in the "full and equal enjoyment of specified public transportation services provided by a private entity that is primarily engaged in the business of transporting people and whose operations affect commerce (§304(a)). "Specified public transportation" is defined by §301(10) as "transportation by bus, rail, or any other conveyance (other than by aircraft) that provides the general public with general or special service (including charter service) on a regular and continuing basis."

Cruise ships easily meet the definition of "specified public transportation." Cruise ships are used almost exclusively for transporting passengers and no one doubts that their operations affect commerce. Cruise ships operate according to set schedules or for charter and their services are offered to the general public. Finally, despite some seasonal variations, their services are offered on a regular and continuing basis.

Virtually all cruise ships serving U.S. ports are foreign-flag vessels. International law clearly allows the U.S. to exercise jurisdiction over foreign-flag vessels while they are in U.S. ports, subject to treaty obligations. A state has complete sovereignty over its internal waters, including ports. Therefore, once a commercial ship voluntarily enters a port, it becomes subject to the jurisdiction of the coastal state. In addition, a State may condition the entry of a foreign ship into its internal waters or ports on compliance with its laws and regulations. The United States thus appears to have jurisdiction to apply ADA requirements to foreign-flag cruise ships that call in U.S. ports.

We would point out that, even though the United States has territorial jurisdiction over foreign-flag vessels in its ports, its ability to enforce its domestic laws may be limited by treaty. This poses a problem only where the terms of a statute are in conflict with the terms of a treaty. No determination has been made about whether the provisions of the ADA are in conflict with any treaty.

Before promulgating any specific requirements affecting foreign-flag ships, the Department would see if any treaty provisions (e.g., provisions of the Convention on Safety of Life at Sea) would conflict with ADA requirements. The Department would structure any regulatory requirements to avoid such conflicts.

Subpart F - Paratransit as a Complement to Fixed Route Service

§37.121 Requirement for Comparable Complementary Paratransit Service.

This section sets forth the basic requirement for comparable paratransit service, which applies to each public entity operating a fixed route system. The requirements for paratransit service are to be met by a system complying with §§37.123 - 37.133, which embody the eligibility requirements and service criteria for paratransit, though compliance with §37.131 may be modified where an undue financial burden waiver is granted.

Though it is clear from the statute, a number of commenters wanted an explicit statement in the rule that.the commuter bus and commuter rail systems are not required to provide complementary paratransit. The former is the case because §223(a) of the ADA specifically exempts commuter bus service from the paratransit requirement. The latter is true because commuter rail is excluded from the definition of "designated public transportation." Since, by definition, only entities providing designated public transportation can operate a "fixed route system," and the paratransit requirement applies only to entities operating fixed route systems, commuter rail systems are not subject to the paratransit requirement. Paragraph (c) restates that these types of systems do not have to provide paratransit.

A number of transit providers commented on the general concept of comparability used in the NPRM, which would require paratransit systems to meet a number of service criteria. The thrust of these comments was that it would be better to take a less specific approach to comparability. The rule, in this view, should state only a general concept of comparability and then permit local areas to design systems that would serve the needs of individuals with disabilities to the same degree that fixed route serves the needs of the rest of the population. Another commenter's spin on this point was that the criteria should be only "minimum" criteria (i.e., guidelines or goals), with the local community, with consumer input, to determine what is comparable. Anything going beyond "minimum" criteria goes beyond the statute, in this commenter's view.

The latter comment misconstrues what a minimum criterion is. A "minimum" criterion is one which establishes a floor for service, below which one may not go. It is not a "minimal" criterion, which requires someone to do very little. DOJ makes the same point in the preambles to its ADA rules.

The view that there should be only a very general requirement for comparability, the content of which would be filled in at the local level, is inconsistent with the requirement for a set of minimum service criteria that would "determine the level of services" to be provided (§223(c)(3) of the ADA). Moreover, it fails to take into account a long statutory and regulatory history of the concept of comparability, which leads directly to the service criteria approach of this rule. The ADA's joining of the concept of comparability with the need to establish specific service criteria builds on the approach taken by 16(d) of the Urban Mass Transportation Act of 1964, as amended (implemented by the Department's 1986 regulation on transportation services for individuals with disabilities, which established service criteria approaching a paratransit system that closely resembles that of the ADA NPRM)> ). In enacting the ADA, Congress did nothing to suggest that the Department's approach should be changed. The language and purpose of the ADA are consistent with the Department's decision to retain service criteria.

A few commenters also asked that light and rapid rail operators be exempted from the paratransit requirement, since they typically served areas that bus systems also serve. The Department cannot adopt this comment. The ADA requires that all public entities operating fixed route systems -- a category into which public rapid and light rail operators clearly fall -- provide paratransit. Congress excepted commuter bus service, but no one else, from this requirement.

737.123 ADA Paratransit Eligibility - Standards

Eligibility was one of the most commented-upon portions of the NPRM. One of the most frequent general comments was that the NPRM's conception of eligibility was too restrictive. To "strictly limit" ADA paratransit eligibility to the three proposed categories would create substantial hardship for many persons with disabilities, commenters said, and could deprive some persons who currently depend on paratransit of the opportunity to continue using the service (other commenters noted that some previously ineligible persons, such as those with cognitive disabilities, might become eligible, however).

The short answer to these comments is that the NPRM followed the statute almost to the letter in defining the eligibility categories. The longer answer has to do with the design and intent of the ADA. The ADA is a civil rights statute, not a transportation or social service program statute. The ADA clearly emphasizes nondiscriminatory access to fixed route service, with complementary paratransit acting as a "safety net" for people who cannot use the fixed route system. Under the ADA, complementary paratransit is not intended to be a comprehensive system of transportation for individuals with disabilities.

Another way of saying this is that the ADA does not attempt to meet all the transportation needs of individuals with disabilities. As one disability group representative suggested during the Advisory Committee meetings, the ADA is intended simply to provide to individuals with disabilities with the same mass transportation service opportunities everyone else gets, whether they be good, bad, or mediocre.

It appears that many of the commenters who expressed concern about the perceived restrictiveness of the NPRM eligibility criteria did so in the belief that the rule should mandate a comprehensive transportation system for individuals with disabilities that would meet all or almost all their transportation needs. This desire for the best service possible is very understandable. While we do not share these commenters' view of the statute, we emphasize that the ADA and this rule set no ceilings on the service that local entities may provide. Local entities can provide paratransit service to anyone they wish. Such additional service, provided as a matter of local discretion, is very desirable. The rule points out, however, that since it is not mandated by the ADA, its costs cannot be regarded as financial burdens of ADA compliance that can be taken into account for undue financial burden waiver purposes.

It should be pointed out that a number of commenters, both disability groups and transit properties, supported the notion of strict adherence to the statutory eligibility criteria. Doing so was seen as a means of avoiding undue financial burdens and of avoiding an overload on the system that would make it harder for people who really needed the service to get it.

The NPRM specified that persons could be eligible on the basis of permanent or temporary disabilities. A few commenters objected to permitting eligibility based on a temporary disability. The Department believes that if someone meets one of the eligibility criteria, that person should be provided service, regardless of the duration of the disability involved. As noted in the next section of the rule, an entity may establish an expiration date for eligibility, which should prevent situations in which someone would remain eligible permanently based on a temporary disability.

Another concept that generated substantial comment was that of trip-by-trip determination of eligibility. Even those comments that objected to this provision recognized its conceptual validity. That is, all three statutory eligibility categories deal with functional inability to use fixed route transit arising from a combination of a disability and circumstances. Circumstances change (and, as commenters pointed, the manifestations of disabilities can vary as well). Someone who can navigate the system to work may not be able to navigate the system to a different destination. Someone who can get to a bus stop in the summer may not be able to get there in the winter. Someone who can use accessible fixed route service can travel to some locations on the fixed route system but not others (i.e., those to which routes are not yet accessible). Consistent with this statutory scheme, it does not make sense to say that if the statute mandates that an individual be eligible in one set of circumstances, the individual must be regarded as eligible in all circumstances, even where, in fact, the individual can use fixed route service.

The thrust of the comments objecting to trip-by-trip eligibility was that it was too difficult to administer. It would complicate eligibility determinations and trip scheduling and create significant additional workload, commenters said. Some commenters, both disability groups and transit properties, said that the trip-by-trip approach was practicable, however. During the discussions of the Advisory Committee, some transit property representatives said that they were already doing or planning to do trip-by-trip eligibility, while others said it was not possible for them to operate in that way.

The Department is retaining this concept in the final rule. That is, if someone meets the eligibility criteria for some trips but not others, that person is ADA eligible only for the former. This does not mean that, in practice, a transit property which finds that administering a trip-by-trip eligibility system is too difficult must do so. The ADA requires paratransit to be provided to ADA eligible persons. As long as a transit provider ensures that paratransit is made available to all persons for all trips for which they meet eligibility criteria, the transit provider has complied with the rule. If the transit provider finds it administratively more practicable to provide any requested trip to an individual who is ADA paratransit eligible only for some of the trips requested, that is permitted under the rule. The only caveat is that the cost of trips not mandated by ADA requirements cannot be counted in the context of a request for an undue financial burden waiver. (In applying for an undue burden waiver, an entity which did not actually operate a trip-by-trip eligibility system would count only the percentage of its overall costs equal to its percentage of ADA-mandated trips.)

The first eligibility category concerns individuals who cannot board, ride, or disembark from an accessible vehicle (e.g., people who, because of a visual or cognitive impairment, cannot "navigate the system"). This category was not the subject of much comment, except in relation to the issue of trip-by-trip determinations of eligibility, discussed above. In this context, some commenters with multiple sclerosis (MS) said that because of unpredictable day-to-day fluctuations in their condition, it would be almost impossible to apply trip-by-trip eligibility to them. This is a reasonable factor for transit providers to take into account as they plan their eligibility systems, but disability-specific eligibility provisions are not practicable in this regulation, in our view.

Some commenters questioned the eligibility of relatively mobile persons with visual impairments. The statute makes clear, however, that such persons are eligible if they cannot "navigate the system."

The second eligibility category consists of people who can use an accessible vehicle but cannot use a route on the fixed route system for lack of accessible vehicles. There was relatively little comment on the basic requirement of this transitional eligibility category. There were a number of comments on one aspect of the proposed rule, however, which would make eligible for paratransit persons who could travel on an accessible vehicle but for a stop on which the bus lift cannot be deployed.

A number of transit properties objected to providing paratransit service on the basis of circumstances they viewed as being beyond their control (e.g., terrain features or architectural barriers). In many places, conditions at bus stops are under the jurisdiction of a state or local government, not the transit provider.

Disability community commenters, on the other hand, said that if a stop were difficult to use by people with disabilities, the stop should be relocated. In no case, these commenters said, should the transit authority be permitted to declare stops off limits to wheelchair users, unless the lift would physically not deploy or would be damaged if it deployed.

The Department agrees that if a lift physically cannot be deployed at a stop, or would be damaged if it did, the transit authority should not have to deploy it. But it is not appropriate, in this event, to impose the resulting inconvenience on a passenger with a disability by denying that passenger the ability to get to a particular destination. If the transit provider does not provide fixed route service to a passenger with a disability at a particular location at which service is provided to other persons, it does not provide accessible service there, triggering paratransit eligibility. Moving a stop to a location where the lift will work, as some commenters suggested, is one solution to this problem. The issue of refusing to deploy a lift where it can be deployed is a provision of service issue that is discussed under _§37.167. We would also point out that _§37.9 requires transit providers to cooperate with other public entities (who have responsibilities for bus stops under the DOJ Title II rule) with respect to bus stop accessibility.

The rule also provides that if someone with a common wheelchair cannot use a lift on an existing vehicle (i.e., because the lift does not meet Access Board standards), that individual would be eligible under this category. This is another form of "transitional" eligibility the occurrence of which should be reduced as new vehicles meeting Access Board standards come on line.

A few commenters suggested that rail systems not be subject to paratransit requirements, since they tend to have service areas that overlap bus service areas. Given the statutory requirement that complementary paratransit be provided for every fixed route system, we cannot adopt this comment. Comments did ask how eligibility requirements would apply to rail, however. The first and third standards quite clearly apply to rail the same as they do to bus, but the second standard is somewhat more difficult to apply in the rail context.

The statutory standard appears to be drafted with bus systems in mind, but its conceptual point applies to rail systems as well. This point is that if someone can ride on a route when it is accessible, but cannot now ride because the system is still inaccessible, the person is ADA paratransit eligible. With bus systems, residual inaccessibility has to do with there not yet being 100 percent accessible buses. On a rapid or light rail system, it has to do with there not yet being one accessible car per train or with key stations not yet being made accessible. The final rule uses these two factors to define rail system paratransit eligibility.

The third eligibility category, for people who have specific impairment-related conditions that prevent their getting to or from a stop -- generated the most comment. The most thorough explanation of this concept comes from the House Public Works and Transportation Committee report (H. Rept. 101-485, Pt. 1, at 29-30):

In general, the Committee does not intend that the concepts of boarding and disembarking include travel to or from a boarding or disembarking location. However, the Committee included a very narrow exception in recognition of specific impairment-related conditions which certain individuals with disabilities may have. Under the bill, paratransit services must be provided to any individual with a disability who has a specific impairment-related condition that prevents the individual from traveling to a boarding location or from a disembarking location on a fixed route system. A specific condition related to the impairment of the individual with a disability such as chronic fatigue, blindness, a lack of cognitive ability to remember and follow directions or a special sensitivity to temperature must be present. The Committee does not intend for the existence of architectural barriers to trigger eligibility for paratransit under this section if these barriers are not the responsibility of the fixed route operator to remove. In particular, no eligibility for paratransit exists due simply to a lack of curb cuts in the path of travel of an individual with a disability since, in the short term, such barriers can often be navigated around and, more importantly, pressure to eliminate these architectural barriers must be maintained on the state and local governmental entities responsible for eliminating them. In the same way, distance from a boarding of disembarking location alone does not trigger eligibility under this section. In both of these cases, a specific condition related to the impairment of the individual with a disability such as those cited previously must also be present to trigger paratransit eligibility. The committee is concerned that a broad interpretation of this exception will discourage the use of fixed route transit systems by individuals with disabilities.

Most comments on this subject said that the category was too restrictive, and that it failed to take into account the difficulty many individuals with disabilities have in getting to a bus stop. A blind person who cannot cross an eight-lane highway, or a wheelchair user who cannot go up a steep hill or push through heavy snow, may in fact be prevented from getting to a stop and using fixed route transit. The rule should recognize, these commenters said, that a combination of a disability and physical barriers, distance, terrain, etc. constitutes a valid basis for eligibility.

The Department believes that it is reasonable to clarify in the rule that a combination of an impairment-related condition and environmental barriers may form a basis for eligibility. The existence of a barrier, standing alone, does not confer eligibility; only if the interaction of the barrier and the impairment-related condition prevents getting to the stop would there be eligibility. This position recognizes that environmental barriers "alone" do not confer eligibility. The Advisory Committee was in general agreement with this approach.

The final rule also calls attention to the statutory word "prevents." An impairment-related condition does not confer eligibility if it simply makes use of fixed route transit less comfortable, or more difficult, than use of fixed route transit for persons who do not have the condition. Members of the Advisory Committee recounted conversations with paratransit users who objected to going to the bus stop and waiting for the bus, rather than scheduling a paratransit van to come to their house. The rule provides that, unless the condition prevents the travel, the individual is not ADA paratransit eligible.

The ADA also requires one other person accompanying the eligible individual to be provided service, with other persons provided service on a space available basis. A few comments said that no more than one individual should ever be provided service, since doing so would unduly complicate scheduling. Others said that more than one person should be guaranteed service in some situations (e.g., a parent who is a wheelchair user taking three children to the doctor). Other comments asked for clarification of the role of attendants. There were several suggestions that in order to be provided service, the other people should have the same origin and destination as the eligible individual.

Since the statute is clear about carrying one companion, with others space available, we do not have discretion to make either requested change on that point. With respect to attendants, we are persuaded by commenters' argument that a personal care attendant is (like a wheelchair) a necessary part of the eligible individual's mobility. Consequently, a personal care attendant (as distinct from a family member or.friend who is along for the ride) is not counted against the one companion limit. To help providers administer this portion of the rule, the eligibility process provision (§37.125) allows them to require persons who will be traveling with personal care attendants to register that fact in advance.

We also agree with commenters who said the additional individuals should have the same origin and destination as the eligible individual, since the statute allows these otherwise ineligible persons to take the trip because they are "accompanying" the eligible individual. This means, in our view, that they are taking the same trip as the eligible individual.

_§37.125 ADA Paratransit Eligibility - Process

It is common for commenters on proposed rules to complain that Federal agencies are imposing overly prescriptive requirements on them, and denying them appropriate local discretion (indeed, certain portions of this NPRM received responses of this kind). The most common comment on this section, however, was that the rule is not prescriptive enough. Commenters asked for exhaustive lists of impairment-related conditions, on an order of detail similar to the Access Board technical standards for vehicle accessibility. Standard Federal eligibility forms were requested, and some commenters favored a Federal (or at least centralized) eligibility certification process.

The Department understands the motivation behind these comments. Making case-by-case determinations of eligibility is a difficult business at best, fraught with tough judgment calls and conflicts between a genuine desire to provide service that people need, the need to provide service in accordance with the rules , and the need to stay within available resources. It would be very helpful to have that job made easier by standard procedures that everyone throughout the nation follows and standard eligibility templates into which all applicants could be fit, making difficult judgment decisions less necessary. We sympathize, but we are unable to provide the requested prescriptiveness.

This is not just a matter of generic regulatory policy. It is a fact that DOT is not as well situated as people in local areas to know what types of conditions, combined with what sorts of local circumstances, make a given person eligible for a certain set of trips. During the Advisory Committee meetings, we asked for recommendations from members -- among them some of the most able transit providers and disability groups in the country -- for what a set of Federal eligibility guidelines might look like, and we received only one. Various members mentioned functional tests they applied; we do not believe it would be that useful to endorse one of the many variations on such lists that people could devise.

Federally-designed templates, especially those that attempt to apply to the situations of thousands or millions of individual human beings, tend to fit poorly. A centralized process, even if the resources existed for it (they don't) would, in our view, be much less desirable than a process at the local level. Not only would it take longer to make decisions, but it would inevitably be less responsive to the details of local circumstances and individual needs. We would point out that the legislative history of the ADA contemplated that implementation of the paratransit requirement by fixed route operators would include a local certification process.

For these reasons, this section retains the with a requirement that each transit provider (or groups of providers in a region coordinating with one another) devise and operate a local eligibility process. For the reasons described in the discussion of §37.121. this process must strictly limit ADA paratransit eligibility to the persons described in that section (this does not mean that paratransit service must be limited to such persons, however).

The NPRM proposed that information concerning this process be made available in accessible formats. There were few comments on this subject, none of which opposed the idea (though some asked for additional guidance), and we are retaining it.

The NPRM proposed a concept of "presumptive eligibility." The purpose of this provision is to protect applicants against lengthy delays in being approved for paratransit service. The provision said that after a length of time had passed from the application, the applicant would be presumed eligible and provided service, until and unless a negative determination were made.

Most comments focused on the length of the period of time. Most said between two and four weeks was appropriate, with transit providers clustering around the latter and disability groups around the former. Others suggested immediate eligibility or a waiting period of up to six or eight weeks. Some comments suggested specifying that the period of time should not begin to run until.a complete application had been received.

The Department believes that the suggestion that the time period should start to run when a complete application has been received is a good one, since it will not penalize transit providers for delays that are outside its control. With this addition, the Department believes that 21 days is a good length for the time period. This period will not drastically inconvenience applicants, but will allow a realistic time for transit agencies to do their work.

The Department recognizes that legitimate workload and resource limitations may sometimes prevent decisions from being made in this time frame, and adopts this provision in the belief that such delays should not unduly burden applicants who need service.

There were no objections to the proposal that eligibility determinations be in writing, and that provision is adopted. With respect to documentation of eligibility, some commenters asked for a requirement for an ID card, as such. There was disagreement among commenters whether DOT should prescribe a standard card or whether this should be left to local discretion. On the other hand, some comments said an ID card was unnecessary, given the presumptive eligibility requirement for visitors. Others opposed the idea on grounds of cost or administrative burden. There were a variety of ideas on what type of information the card should contain.

The Department believes that documentation of eligibility is a good idea, which will provide proof to both local and out-of-town provider personnel that the person is eligible. While we think it is unnecessary to prescribe a form, certain basic information should be on the form -- name of the eligible individual, name of the transit provider, the telephone number of the entity's paratransit coordinator, an expiration date, and any conditions or limitations on the eligibility. The documentation need not be a card, as such: it can be a letter or some other format. The Department does not believe such documentation will prove burdensome, since transit providers will have to provide most of this information in eligibility decision notices anyway.

A number of commenters favored recertification. Since circumstances change over time, it is useful for a transit provider to determine, at reasonable intervals, that an individual remains eligible, is still living and in the area etc. The final rule permits a recertification requirement.

The relatively few comments that addressed the administrative appeals process favored it, emphasizing the need for administrative due process. As adopted, this provision would include a filing deadline of 60 days, an opportunity to be heard in person, separation of functions (so that the appeal is not merely a reconsideration by the same person or office that made the original decision) and written notification. Appeals processes can become prolonged, just like initial decisions, so that beginning after 30 days from the completion of the appeal process, service would have to be provided to the individual until and unless a negative determination is rendered.

Comments asked under what circumstances it would be appropriate to deny eligibility or refuse service to individuals. Commenters suggested such circumstances as violent, illegal, or disruptive behavior, or a pattern of being a "no-show," as potential reasons for refusing service.

The ADA says people who meet its criteria must be treated as eligible. Therefore, it is only in very few and compelling situations that an entity is entitled to refuse service to an otherwise eligible person. The definition which the Department adopts would concern a passenger who engages in violent, seriously disruptive or illegal conduct. This issue is covered in the nondiscrimination section of the rule.

Sanctioning individuals who chronically fail to show up for scheduled rides, on the other hand, is not refusing to provide service on the basis of disability. An appropriate system of sanctions can help to deter or deal with individuals who misuse the system, absorbing capacity that could otherwise go to people who need rides and increasing costs.

For this reason, the final rule permits public entities to suspend the provision of paratransit service to otherwise ADA paratransit eligible individuals who engage in a pattern or practice of missing scheduled trips. A "pattern or practice" involves intentional, regular, or repeated actions, not isolated, accidental or singular events. "No-shows" attributable to causes beyond the individual's control -- including problems with the delivery of the service (e.g., the van is an hour late and, before it arrives, the passenger has given up and called a taxi) -- cannot form part of such a pattern or practice. Before imposing a sanction, the entity would have to provide basic administrative due process to the individual, and this section's administrative appeal mechanism would apply in cases decided against the individual.

§37.127 Complementary Paratransit Service for Visitors.

Commenters had little quarrel with the idea that out-of-town visitors should be able to use paratransit in the area they are visiting, without going through a long eligibility process that would probably outlast their visit. But commenters had a number of questions and concerns about the operation of the process.

First, commenters wanted some definition of who a visitor is. Several suggested that a visitor should only be someone from outside not only the jurisdiction in which the individual resides, but also outside nearby jurisdictions which coordinate paratransit service with the "home" jurisdiction. The Department believes that this comment has merit, and we have included a provision to this effect.

Second, most commenters agreed that presenting an ADA eligibility documentation from one's "home" jurisdiction should be sufficient to gain eligibility away from home. A few commenters were concerned that such a procedure would lead to inequitable results if, for instance, someone from a city with loose eligibility criteria came into a city with a tighter program. The Department concedes this situation could exist, but believes that it is a problem that is not so serious as to justify eliminating the "full faith and credit" that one jurisdiction would extend to another's eligibility decisions for the short term.

Third, what if someone does not have ADA eligibility documentation? This could happen when, for example, a person travels from a small town which has no mass transit to a city that has complementary paratransit, or when someone who could use fixed route service at home is unable to navigate a fixed route system in a strange city. The NPRM proposed presumptive visitor eligibility as a solution to this problem. Most commenters agreed with this idea, but suggested that transit providers should be able to get certain minimum documentation from such a person. The Department agrees, and the final rule permits the provider to require presentation of proof of residence (to make sure the person was a visitor) and, when necessary, documentation of disability (e.g., in the case of a so-called "hidden disability"). The provider would accept the visitor's statementof inability to use the fixed route system.

Fourth, how long should visitor eligibility last? A number of commenters suggested that the rule should state an outside limit, after which someone would have to apply for regular, local eligibility. The Department also believes that this comment has merit. Since the period before service must be provided to a local applicant is 21 days, this seems to be a reasonable period of time. That is, a visitor who anticipated staying in town for longer than three weeks, or a part-year resident, could submit a completed application upon arrival, and receive service for 21 days, and then either have a decision from the local transit provider or a continuation of service until a decision was rendered.

§37.129 Types of Service.

The NPRM preamble discussed some aspects of the kinds of transportation service that would be acceptable to provide as a part of complementary paratransit service. The premise of this discussion was that complementary paratransit service was demand responsive, providing origin to destination service.

Several comments asked for clarification on whether such service was meant to be door-to-door or curb-to-curb, and some of them recommended one or the other, or a combination of the two. The Department declines to characterize the service as either. The main point, we think, is that the service must go from the user's point of origin to his or her destination point. It is reasonable to think that service for some individuals or locations might be better if it is door-to-door, while curb-to-curb might be better in other circumstances. This is exactly the sort of detailed operational decision best left to the development of paratransit plans at the local level.

The NPRM asked whether on-call bus or paratransit feeder service would be acceptable in some circumstances. Comments were unanimous that on-call bus service would be appropriate for persons in the second eligibility category. Feeder service was generally approved for the second and third eligibility categories, but with some reservations, mainly from disability groups which were concerned that a feeder system that would require more transfers than would be required for a similar trip on fixed route.

The Department agrees that on-call bus service and feeder service are appropriate in the eligibility categories mentioned. The second eligibility category consists of people who can use an accessible fixed route system, but currently do not have an accessible route to use to get to their destination. An on-call bus system can put an accessible bus on their route at the time they want to travel, meeting ADA requirements in their case. In some cases, a paratransit feeder to an accessible bus line would also work for people in this category.

The third category consists of people who can use a fixed route system but are unable, because of a specific impairment related condition, to get to or from a stop or station. Feeder paratransit to get them from home to a bus stop, or from a bus stop to a destination, meets ADA requirements for them. In order to make such a system operational, transfers between paratransit and fixed route vehicles would seem essential. Consequently, without eliminating this mode of providing service altogether, the Department could not prohibit transfers.

§37.131 Service Criteria for Complementary Paratransit.

Service Area

This criterion was the subject of more comments than any of the others. The NPRM has proposed the "crustacean" approach to service area, in which service would be provided to origins and destinations within corridors of a given width on either side of a fixed route. The Advisory Committee, in its January meeting, supported this concept on the basis that it reflected most closely the intent of the ADA that complementary paratransit be a "safety net" as comparable as possible to fixed route service.

A majority of comments on this concept favored the "circumferential" or "connect the dots" model of service area which was used in the Department's section 504 rule. This model was said to be easier to administer and to include more origins and destinations and hence serve the transportation needs of persons with disabilities more comprehensively. Of particular concern to some commenters was the possibility that some people who now get service would lose it. Commenters also expressed concern about isolated pockets left unserved. Some said that the rule should prohibit entities from reducing the size of their service area from what it was under the 1986 504 rule, or argued that "connect the dots" better implemented the ADA legislative history language that talked of paratransit service "throughout" the entity's service area.

Commenters who preferred the corrider-based model emphasized its congruence with the ADA's emphasis on fixed route service as the primary mode of transportation for everyone, with paratransit as a safety net for people who cannot use fixed route service. The paratransit service is not intended under the ADA, these commenters said, to provide service that is better or more comprehensive than that available on the fixed route system. Some of these commenters also said that, with minor modifications, the corrider-based would provide adequate service to the vast majority of origins and destinations accessible by mass transit. Both disability group and transit industry representatives to the Advisory Committee strongly favored retaining this model.

A related issue was the appropriate width of the corridors. The NPRM asked comments on a variety of alternatives. Most transit providers suggested a width on either side of a route of either 1/4 (a distance often used for bus ridership planning purposes) or 1/2 mile. Disability groups tended to support wider corridors, of up to 1 or 1 1/2 miles on either side of a route, with some suggestions that there should be wider corridors in suburban areas than in the urban core (since people are likely to travel farther to get to a route in less densely populated areas). Some commenters supported substantially broader service areas for rail systems, in the view that the "catchment areas" for rail stations and lines are much bigger than the areas from which bus riders are drawn to stops. One member of the Advisory Committee produced an interesting and much remarked upon map showing how a five mile corridor and ten mile radius around end stations would look for one major urban rail system.

The Department has decided to retain a modification of the corridor-based model, with a related but altered approach for the rail service area. We agree with the Advisory Committee that this approach better captures the intent of the ADA than the connect-the-dots-model, since it provides a closer analog to the actual area served by fixed route transit. We believe that, in many areas, this approach will be more efficient to administer, since it will not require long paratransit trips to areas well away from transit routes. Nor do we think that service throughout the service area necessarily implies a circumferential concept of service area. We meet this objective if we require service to origins and destinations throughout those areas which fixed route transit actually serves.

There may be some currently served origins and destinations that are not required to be served under this service area concept, just as there are some currently served individuals who the eligibility criteria of the ADA do not require to be served. We emphasize that the rule does not prohibit an entity from serving any origin or destination it chooses. The costs of serving origins or destinations that are not mandated in the rule do not count with respect to undue financial burden waiver requests, however.

With respect to corridor width, most members of the Advisory Committee favored 3/4 of a mile on either side of a fixed route. This distance was thought to be reasonable because it was sufficiently wide to take into account the likelihood that fixed route service would draw passengers with disabilities from a relatively wide distance on either side of a fixed route, because corridors of this width would minimize unserved pockets, because it was not so wide as to vitiate the corridor concept, and because it represented a fair middle ground between commenters' suggestions. The Department believes that this distance has merit, and will adopt it.

The Department, in response to comments, has made two modifications to the corridor concept. First, if within the urban core area (i.e., the area in which the corridors merge together to make a nearly solid mass), there are pockets not within any corridor completely surrounded by corridors, the pockets will be served as well. (During the June Advisory Committee meetings, members often referred to the corridor model as the "handprint" approach). Second, outside the core area, the local entity, through the planning process, could increase corridor widths from 3/4 mile to as much as 1 1/2 miles, in order to serve additional origins and destinations in less densely populated areas.

The issue of how to define the service area for rail systems is one of the most difficult in the rulemaking. Among the factors we considered in deciding how to address this issue were the following:

  • Rail systems draw riders from farther away from stations than bus lines draw riders from bus routes. Members of the Advisory Committee presented information that some rail systems, for their own planning purposes, define their service areas in terms of circles around stations (e.g., a three-mile radius around most stations and a five-mile radius around end stations, in one system).
  • Information available to the Department suggests that the walking distance from which people go to a train station is not substantially greater than the walking distance from which they go to a bus line. Access to the station from further away is typically by other modes (e.g., bus, for people who do not drive their own cars to a park-and-ride), which involve a transfer to the rail line.
  • While rail systems have fixed routes, people do not access them from a corridor in the same sense that they do a bus route. For example, if stations are four miles apart, and someone lives within sight of the tracks halfway between the stations, one cannot access the system without going two miles to a station.
  • The most important use of paratransit for rail service is not so much getting to stations as it is providing trips along the rail corridor-- especially longer trips -- for which there are not good bus parallels.

On balance, we believe that the most reasonable approach to follow in defining the rail service area is to draw a circle around each rail station, with a radius of 3/4 of a mile (at end or outlying stations, the local planning process could decide to expand the radius to up to 1 1/2 miles, parallel to the bus corridor expansion described above). This appears to reflect more reasonably than a corridor-based approach the way people access and use rail systems. We judge the size of the circles to be a reasonable approximation of the distance from which people would go to a station without another transportation mode as an intermediary. The entity would provide service from any origin in any circle to any destination in any other circle.

We note that some commenters favored, rather than either the corridor or circumferential approach to service area, requiring service to all of a political jurisdiction (e.g., a county) in which the transit system operates. While such a definition makes sense for a comprehensive social service-oriented system intended to meet all needs of persons with disabilities, it goes well beyond comparability to the area actually served by fixed route transit. Other commenters preferred local option with respect to defining a service area. There is a statutory requirement for paratransit service in the service area of the fixed route system, and we believe that local option would not adequately ensure that service was provided as the statute intended.

The NPRM proposed that paratransit need not be provided outside the boundaries of the political jurisdiction in which the entity is authorized to operate, even if the corridor-based service area extended over the boundary. A substantial number of disability community commenters objected to this provision, saying that it would fragment service, require burdensome extra transfers or coordination, and not provide the service within the required service area.

Although we recognize that jurisdictional boundaries can create problems with the provision of service, we have retained this provision in the final rule. As commenters suggested, coordination, reciprocal agreements or memoranda of understanding should be able to solve a great many boundary overlap problems, and the rule require efforts of this kind. In other cases, however, entities may simply lack the legal authority to operate beyond the bounds of a particular jurisdiction, and this provision recognizes that fact.

Response Time.

The NPRM proposed that an entity schedule paratransit so as to provide next-day service to users. The preamble asked about "real time scheduling" as well. A substantial majority of comments endorsed the proposal, believing that it was a realistic requirement that still provided reasonable convenient service to users. Some transit properties favored a 24-hour requirement, as opposed to next-day scheduling, and a number of commenters advocated real time scheduling, touting its faster response times and lower per-trip costs. Others were concerned that real time scheduling would increase demand substantially, raising costs and overloading capacity.

The Department is retaining the next-day scheduling provision, on the grounds stated by the commenters. It is a good balance of minimizing inconvenience to users and allowing providers sufficient time to schedule trips to maximize efficiency. The regulation explicitly allows real time scheduling to be used, though it is not mandated.

The NPRM said that reservation service must be made available during all business hours, and during times equivalent to normal business hours on days prior to a service day when the offices are not open. Many transit providers objected to this provision, saying that it would cause them to have to open their offices on weekends and increase administrative costs. It should be acceptable for people to call on Friday for Monday service, they thought. Some commenters also asked whether a reservation office had to be staffed at all such times or whether an answering machine or similar technology would do. Commenters also asked whether normal business hours meant hours when the transportation service was running, or administrative office hours. The relatively few disability group comments on this section supported the NPRM proposal.

With one clarification, the Department is retaining the NPRM provision. The clarification is to say that reservation service would be made available during the normal business hours of the provider's administrative offices. On days when those offices were not open, such as weekends and holidays, it would be acceptable to take reservations by answering machine or similar means. Consequently, the requirement to ensure next day scheduling for every service day -- even a day following a weekend or holiday -- should not be as onerous as some commenters believed. While some costs are involved (a scheduler would have to work, for example, on Sunday evening to schedule trips for Monday morning), this situation is more in keeping with the transportation system envisioned by the ADA than a system which included a major exception to the response time criterion. Under the ADA, response time is to be comparable to fixed route service to the extent practicable. We are confident that this provision is "practicable" for transit providers.

A few commenters mentioned that people should be able to make reservations a long time in advance, even if real time scheduling or next day scheduling were the practice. We agree, and the rule tells transit providers to allow reservations up to 14 days in advance of the individual's desired trip.

Some transit commenters asked for flexibility to establish pickup times in order to maximize efficiency. On the other hand, some disability community commenters asked for protection against what they regarded as the problem of transit authorities insisting on scheduling their travel at times very divergent from desired travel times. To address both sets of concerns, the Department is adding a provision to the rule that would allow transit authorities to negotiate pickup times with eligible persons. However, the provider could not insist on pickup times (at either end of the trip) that varied by more than an hour from the user's desired travel time.

Fares

The NPRM proposed that fares could be double the base fixed route fare, taking into account both discounts and add-ons (e.g., transfer or premium charges). Few of the many commenters on this provision found much good to say about it, a number expressing confusion about its wording.

From the point of view of many transit providers, twice was not enough. Many of these commenters said that comparability, with respect to fares should be measured not in terms of the fares passengers paid, but on the percentage of revenues those fares represented of trip cost. Paratransit is a premium service with high per trip costs, a number of providers said, and should be priced accordingly. They also opposed taking discounts into account, saying that doing so would increase revenue pressures on them even more and would create a disincentive for using fixed route discounts beyond those situations mandated by law.

Disability community commenters, on the other hand, opposed allowing more than the fare charged on fixed route to be charged for paratransit. A double fare was not comparable, they asserted. These comments pointed out that many individuals with disabilities had limited incomes, and while doubling fares would not put a big dent in transit providers' deficits, it would take a big chunk out of the disposable incomes of many individuals with disabilities. Disability group comments were at best lukewarm on the inclusion of discounts.

At the Advisory Committee meetings, there was general agreement that it would be appropriate to drop consideration of discounts, and base the paratransit fare on the actual fare paid on a similar fixed route trip, including transfer and premium charges. There was not agreement on whether the fare could be double that amount. The Department agrees with the Advisory Committee on the calculation of the fare (i.e., that discounts should not be included) and will retain the provision permitting double that amount to be charged. We do so on the basis that this fare, while more than the fixed route fare, remains within bounds of comparability, and does have a reasonable relationship to the higher per-trip costs of demand-responsive service. A fare double that of a fixed route trip should not be prohibitively high. Given the differences between fixed route and paratransit service, including its per trip cost as well as its different service characteristics, we do not believe that the statute precludes a higher fare for paratransit. At the same time, we do not accept arguments that comparability should be viewed in terms of farebox recovery ratios. Under the statute, comparability is clearly viewed from the point of view of the consumer, not the provider.

Commenters also raised questions about the fares to be charged companions and attendants. A companion is someone who the ADA explicitly permits to ride with the eligible individual. If someone goes with a friend who has a disability on a fixed route bus, he pays the same fare as the friend. The same should hold true on paratransit. The rule will require the same fare to be charged for companions as for the eligible individual. With respect to personal care attendants (see discussion of §37.123), the situation is different. A personal care attendant is someone with whom the eligible individual must travel, just as an individual with a mobility impairment must travel with a wheelchair. As an essential accommodation, the personal care attendant should travel without charge, and the rule so provides.

Commenters raised the issue of social service agency (or other organization) transportation. In response to a preamble question, a number of transit providers suggested that it was appropriate to permit higher fares in this situation. Trips guaranteed to an organization are a premium service, one commenter asserted, for which a higher charge is appropriate. Some commenters thought that this provision could help to deter "dumping" of social service transportation onto the public paratransit system, though nobody put the idea forward as a panacea for that problem. Several commenters cautioned that any such provision should have safeguards to ensure that the higher fares only applied to "agency trips," and not to individually paid for trips which an agency simply arranged for clients.

The Department is adopting these suggestions. Transit providers can negotiate a higher fare for "agency trips," which is appropriate since the ADA's requirement of comparable paratransit goes to individuals, not organizations. To the extent that it forestalls some "dumping," this approach is also desirable. At the same time, the provision applies only to agency trips, not to trips provided on behalf of and paid for by an individual client.

Restrictions and Priorities on Trip Purpose

The NPRM proposed to prohibit restrictions or priorities based on trip purpose. There were few comments. Those from disability groups favored the provision. There were two sources of objection to the proposal. The first was from a few medical transportation providers, who thought that priorities should be retained for kidney dialysis or other medical purposes. The second was from a few transit providers who were concerned that the provision would prohibit subscription service.

The concept of prohibiting restrictions and priorities based on trip purpose is basic to any system of comparable paratransit service. Nobody asks why someone is getting on a bus or rates the significance of their travel. If someone asks why a passenger is getting on a paratransit van, let alone decides for the passenger the relative importance of his or her trip in the larger scheme of things, we do not have a comparable situation. To the extent that such priorities are imposed (e.g., because of a provider decision that medical trips are more important than other types of trips), we have a social service model of transportation rather than the system of service comparable to fixed route transportation that the ADA envisions.

The issue of subscription service is discussed below.in connection with §37.133.

Hours and Days of Service

The NPRM proposed that paratransit service be available during the same hours and days as the fixed route service. Disability groups supported the provision as written, saying that it was necessary to ensure truly comparable service. A number of transit providers asked for more flexibility to devise service which efficiently served the most active periods of demand, but would not need to operate during periods of low demand (e.g., night-owl service). Several favored "averaging," in which entities would provide paratransit for a number of hours during the day equivalent to the number of hours, on average, that all routes ran. It would be more efficient to sacrifice night-owl paratransit and use the funds saved to provide more capacity in periods of higher demand, one commenter said.

If one can get from Point A to Point B at midnight on a fixed route bus, one should be able to travel between those same points at midnight on paratransit. If one cannot do so, it is hard to argue that the system is comparable. On this basis, the Department believes it is necessary to retain the hours and days provision. Given the corridor-based approach to service area, it is likely that costs of late-night service should not be as great as some commenters believe. During low-demand hours, it is typical for there not to be service on many routes. These corridors drop off the service area during these times, and service to origins and destinations in them is not required. For this reason, "averaging," which might result in considerable savings in a circumferential service area, is less important in a corridor-based service area.

Capacity Constraints

The NPRM proposed prohibiting capacity constraints, including waiting lists, restrictions on the numbers of trips a person may take in a given period, or consistent trip denials or untimeliness. The relatively few disability community commenters speaking to this subject favored the requirement.

The majority of comments on the criterion were from transit industry parties, virtually all.of whom opposed the idea. Some comments said that the provisions concerning consistent denials or untimeliness were too vague. Given fluctuations in demand, a system could not avoid some trip denials without having substantial excess capacity. Others said that it was unreasonable to expect any system to meet all demand, which would inevitably require the addition of more vehicles and keep costs spiraling upward. Several commenters pointed out that there are capacity constraints on fixed route systems (e.g., a full bus passes up people waiting at a stop), and capacity constraints were likewise reasonable for paratransit. A few commenters suggested a performance standard (e.g., meeting an average 98 percent of trip requests per day). Interestingly, few commenters spoke in favor of the two primary devices on which the proposal focused -- trip number limits and waiting lists.

It is true, of course, that there are capacity constraints on fixed route transit. Certain potential routes are not served, runs are not made at certain times of day, and these limits restrict everyone's ability to travel on the fixed route system. Capacity constraints of this kind are already reflected in the requirements for paratransit, given the service area and hours and days criteria.

It is also true that packed buses pass by passengers waiting at stops and that full trains pull out of stations leaving passengers standing on the platform. In each of these cases, however (which are most likely to occur at peak travel periods when headways are shortest), all the passengers have to do is wait a little longer for the next bus or train to come. Certainly no system administrator tells such a passenger that he can forget about traveling that day because he has already ridden the bus 20 times that month or that he needs to work his way to the top of a waiting list before he can elbow his way onto a train. If the administrator of a paratransit system tells a similar story to a passenger, it is not a story about a comparable system.

Capacity constraint mechanisms of this kind are incompatible with a comparable paratransit system, and the rule will continue to prohibit them. We are also modifying the chronic trip denials and untimeliness provisions of the NPRM. These provisions were generally supported by disability community commenters, but were criticized by transit industry commenters as vague and difficult to enforce.

Anecdotal reports by disability group representatives, and surveys of some existing paratansit operations in several cities by the Department's Inspector General (IG), suggest that problems of this kind are a serious concern. In one city surveyed by the IG, for example, 26 percent of initial trips surveyed, and 32 percent of return trips, were one to five hours late. Nine percent of passengers had one-way trips that lasted between two and four hours, and involved up to 33 stops between origin and destination. Of a small sample of passengers interviewed by the IG in this city, more than half had quit using the system because of its unreliability.

In another system surveyed by the IG, the reservation phone lines opened at 5:45 a.m. Capacity was filled by 5:53, and no more reservations were accepted. In another city, the IG checked 658 reports by passengers of "no-show" vehicles, learning that erroneous reports about the scheduled pickups had been made by drivers in 26 percent of the cases.

The Department hopes that problems of this kind are not endemic to paratransit systems. But it is clear that patterns or practices of this kind have the effect of limiting the availability of paratransit service to eligible persons in a way not contemplated by the ADA. Consequently, the rule prohibits patterns or practices of this kind. As with the patterns or practices of individuals that adversely affect paratransit service delivery (see §37.125), problems that are not within the control of the provider (e.g., late service because of an accident that ties up the highway) would not form the basis for a forbidden pattern or practice.

One issue that came up in the context of problems in service delivery was a suggestion by several disability community commenters that a paratransit provider should provide one or more free trips for missed trips, late arrivals, or trip durations that substantially exceeded fixed route travel time. This idea is attractive; it appears similar to a concept that has done good things for timely pizza delivery. Given the differences between pizza and paratransit, however, the practicability of the idea in this context is doubtful. There are, obviously, a number of reasons for service delivery problems that should not result in a financial penalty to the provider. The capacity constraints provision discussed above should, in our view, provide adequate redress for systemic problems in service delivery.

The discussion of the capacity constraints requirement, like the discussions of all the other service criteria, assumes a situation in which service is provided without creating an undue financial burden. In cases where an entity is granted an undue financial burden waiver, the rule provides that limiting the number of trips per person per time period is a primary method of reducing costs, while keeping other criteria constant to ensure continued service quality. This point was one made emphatically by disability group representatives on the Advisory Committee.

Given the phase-in period of up to five years permitted under this rule, the allowance of some negotiation of trip times, and the limitations on eligibility set forth in §37.123, the Department anticipates that many providers will find pressures to impose capacity constraints reduced.

Additional Service

This section, like its counterpart in §37.123, specifies that the service criteria do not limit the activities of paratransit providers. As the legislative history of the ADA notes, these requirements establish a "minimum level of paratransit service to be provided." (H. Rept. 1 101-485, Pt. 1, at 30). Providers can do more than this section requires. However, the cost of doing more than the ADA requires cannot be regarded as a financial burden of compliance. Therefore, the costs of additional service cannot be counted in connection with an undue financial burden waiver request.

§37.133 Subscription Service.

A number of commenters on the capacity constraints and no restrictions and priorities on trip provisions of the rule asked about the role of subscription service. A number of these commenters asked for assurance that this service, which is useful for work trips and other repeated trips (e.g., to physical therapy sessions), would not be prohibited. Other commenters, though not opposed to subscription service, asked for assurance that it would not absorb all the capacity of a paratransit system, leaving little room for non-subscription trips. (Information available to the Department supports that this is a very real concern with some systems.)

We believe that, because it provides assurance of regular trips and saves the trouble of repeated calls for service for a work trip or other regular trips, subscription service can be a valuable component of a complementary paratransit system. Therefore, we agree with commenters who wish us to specify that such a system is permissible.

At the same time, we also agree that it would be inconsistent with the notion of a comparable paratransit system to let subscription service absorb the full capacity of the system, as it might at a given time of day (e.g., peak times for work trips). Consequently, the rule includes a maximum of 50 percent of system capacity that can be dedicated at any time of the day to subscription service. The one exception to this is if there is excess non-subscription capacity at a given time, so that system capacity goes begging. In that case, the subscription component of the service could be expanded.

Since subscription service is a limited subcomponent of all paratransit service, we believe it is reasonable to permit some limits on its use. For subscription service only, a provider could establish trip purpose restrictions (e.g., work trips only during morning and evening peak work trip periods) or waiting lists for participation.

§37.135 Submission of Paratransit Plan.

The NPRM's_§37.113 contained certain provisions that are now new, separate sections. The description of these requirements as well as comments submitted on the proposal and the Department's response, are discussed below. (See §37.135, §37.145, and §37.149.)

Section 37.113 of the NPRM proposed that each public entity providing fixed route service submit a plan by January 26, 1992, with annual submissions on each succeeding January 26th. The NPRM also proposed that section 18 recipients, small urbanized area recipients of section 9 funds administered by a state, and public entities who provide fixed route service that do not receive UMTA funds submit their plans to the appropriate state administering office.

The submission of plans by January 26, 1992, drew a few comments -- all saying that this is an unrealistic date. One state department of transportation suggested that extensions be granted upon request, for cause. Unfortunately, the ADA contains a specific provision requiring that plans be submitted by January 26, 1992, and that plan implementation begin on that date also. While the Department does not believe it has flexibility in this area, there are new provisions regarding the submission of joint plans, as discussed below in §37.141.

Sixteen commenters provided input on the proposal to have plans submitted and reviewed by states. All but a few were opposed to the idea. Most states that commented believe that the staffing and cost burden would be too great to bear. Disability groups recommended that the review remain with UMTA for consistency. One transit provider recommended that all plans go through the applicable funding agency for sign-off before being submitted to UMTA. One individual with a disability recommended that the states be allowed to act on behalf of UMTA, as in the section 18 program.

The Advisory Committee discussed the issue of plan submission to states, and their recommendation was to have all plans submitted to UMTA. The Department has revised this section somewhat in response to comments. First, in this section, we direct only two categories of entities to submit their plans to states. These are (1) UMTA recipients and (2) entities who are administered by the state on behalf of UMTA. We have eliminated the requirement that public entities not funded by UMTA submit their plans to the states.

As noted in §37.145, we have retained the provision that certain UMTA grantees submit their plans to the states because UMTA would like the benefit of the states' expertise before final review. However, we have changed the states' role from that of a reviewer to that of a commenter, so that UMTA may receive the benefit of each state's knowledge of the grantee without unduly burdening it with actual review of the plan.

This section makes explicit a provision which was discussed in the preamble to the NPRM. The Department noted that some phase-in of implementation would probably be acceptable, but that phase-in would be determined based on individual circumstances. We asked if the final rule should be more specific. All commenters on this issue recommended that the Department be specific as to a phase-in period. Comments on how long a phase-in should be ranged from one year to ten years, with disability groups advocating a shorter period of time and transit providers advocating a longer period of time.

The final rule (§37.135(d)) specifies maximum 5-year time period for phase-in. This paragraph specifies that all entities must be in full compliance with all paratransit provisions by January 26, 1997, unless the entity has received a waiver from UMTA based on undue financial burden. 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 contain milestones that are susceptible to objective verification. Not all plans will be approved if they have a five year lead-in period. Consistent with the proposed rule, the Department intends to look at each plan individually, to determine what is required for implementation in each case.

§37.137 Paratransit Plan Development

The proposed rule contained three specific requirements during the development of the paratransit plan: first, that each entity ensure public participation in the development of the plan, which at a minimum would include a public hearing, the opportunity for public comment, and consultation with persons with disabilities. Second, this section would have required that each submitting entity survey existing services to determine what paratransit services are already being provided to ADA-paratransit eligible persons. Finally, the NPRM would have required that these requirements apply to each annual submission in addition to the initial submission.

Survey of Existing Services. Less than a dozen individuals and organizations submitted comments on this provision, with most focused on how the financial contributions of these providers should be counted and how to ensure that service included in the plan would be continued. Some private for profit providers thought they should be included in the survey and that they should be consulted in the preparation of the plan.

One state human services agency recommended that formal agreements between fixed route operators and outside operators be required to ensure that services are coordinated and equally available from area to area. The concern of this commenter is that an entity could include service provided by other unrelated agencies in its service plan, which could result in little service being provided to individuals not connected to client-specific agencies. One trade association stated that the rule should require that the plan document that the entity has not only identified the services, but has made every effort to make use of existing paratransit resources, including those of for-profit providers.

Section 223(c)(8) of the ADA specifically requires that each public entity submitting a paratransit plan survey existing services. 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. In effect, 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. The Department urges each entity required to submit a plan to work with current providers of transportation to determine not just what transportation services they provide, but to continue to provide it into the foreseeable future.

Public Participation Requirements. Over a dozen commenters made suggestions on the NPRM's public participation requirements. Those expressing concern about the adequacy of the proposed requirements stated that they were concerned about the quality of the consultation. One commenter suggested that the consultation begin early in the development of the plan and that the regulation should "require that each public entity form an ongoing citizens participation committee which would be formed in the early stages of paratransit plan development and would participate in all stages of plan development and review as well as plan implementation." This thought was echoed in the Advisory Committee in June.

Some commenters requested more specificity on the type and length of notice required. One transit provider suggested that for section 18 providers, the notice of intent to submit a plan should be adequate, with a hearing held only upon request. One disability group said that it would have a difficult time discerning who was the lead agency in the area, and that the lead agency should be designated and responsible for convening an advisory group. Finally, some commenters recommended that more elements of paratransit service (such as appeals from denial of service) be subject to a public hearing requirement. The Department has made more explicit the public participation requirements in the final rule in three ways. First, it has added a new paragraph (§37.137(b)(1)), which requires that providers develop and carry out an outreach effort to locate and notify persons who may be eligible to use its paratransit service. Second it requires that the entity use these public participation requirements when the entity is planning to phasein its paratransit service in more than one year or if it is going to request a waiver based on undue financial burden. Finally, the requirement that the public participation requirement be used for each annual submission has been extended to require that there be an ongoing process for the participation of persons with disabilities in the development of any programs as well as in periodic assessment of these services. 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.

The public participation requirements do not mandate that service be provided to every person with disability. It does require that the entities providing paratransit service attempt to provide to the broadest range possible of persons with disabilities the opportunity to participate in what their future transportation options may look like.

§37.139 Plan Contents

The NPRM proposed eight 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 discrepancy 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; efforts to coordinate with other transportation providers; a description of the process in place or to be used to register ADA paratransit eligible individuals; and a request for a waiver based on undue financial burden, if applicable.

Over fifty comments were received on this section, with two provisions drawing the most comment. First was the phase-in, and lack of specific dates for complete phase-in. Almost all commenters agreed that some phase-in would be necessary. While some felt that the timetable for phase-in was best left to the local decision making process and documented in the plan, most commenters recommended an implementation deadline. While three to five years were mentioned most often, the suggestions ranged from one to ten years. Some suggested different deadlines, depending on whether any paratransit service already existed. One commenter asked for a maintenance of effort provision for paratransit services existing as of July 26, 1990. Other commenters suggested that any reductions to existing services be phased in according to a timetable in the local plan.

The second major area of comment concerned the need for and difficulty of accurately estimating demand for paratransit service. Many operators commented on the difficulty in accurately predicting the demand for the newly mandated paratransit service, particularly in light of the prohibition on capacity constraints. One commenter noted that estimation of the ADA paratransit eligible population should be included in the plan so that reviewers could determine whether the proposed service would be in compliance.

Other comments included the perceived difficulty with identifying "unmet demand", with commenters indicating that this information was difficult and expensive to obtain. Other comments included a recommendation to reduce the six-year budget specified in the proposed rule to a five-year budget. The requirement to include a sign-off by the Metropolitan Planning Organization covered by the plan drew negative comment from a transit provider and a transit trade association. The transit provider suggested an exemption from MPO review if the entity was a statewide organization or if the entity was not an UMTA recipient.

The final rule contains a reorganized and slightly expanded section on plan contents. This reflects commenters' requests to be more explicit, rather than less explicit.

This section, as well as §37.135, provides 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 five-year phase-in in the belief that not all systems will require that long, but that some, particularly those who chose to comply with section 504 requirements with accessible fixed route service may indeed need five years.

We recognize the need to begin providing access to transportation immediately. We are confident that, through the public participation process, a realistic plan for full compliance with the ADA wlll develop.. 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 small increase in the current level of paratransit service being provided. It would not be possible to indicate in the plan that no activity was possible in the first year, but a plan could provide for proportionately more progress to be made in later years. Implementation must begin in January 1992.

Each plan, including its phase-in will be the subject of examination by UMTA. Not all providers will receive approval for a five-year phase-in. The plan must be careful, therefore, to explain what current services are, what the plans are, and include methods to discern the advance of progress toward compliance. These kinds of decisions are best made through the public participation process.

Several commenters indicate a real difficulty in estimating the demand for paratransit service. We are hopeful that the planning process will be enlightening. In an effort to assist in this area, UMTA is publishing a handbook for use by transit providers in developing their paratransit plans and service. This handbook should be available a couple of weeks after the final rule is published. (You may request it by calling the UMTA number in the FOR FURTHER INFORMATION section of this preamble.) The ADA itself contained a figure of 43 million persons with disabilities, although it should be pointed out that many of these would not necessarily be eligible for ADA paratransit service. The Department's regulatory impact analysis, in discussing the probable costs involved in implementing this rule, estimates the likely percentage of population who would be eligible for paratransit as service between 1.4 and 1.9 percent. This figure can vary depending on the type and variety of services an entity has available or climate, or proximity to medical care and other services 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. We are explicitly requiring that the plan include a demand estimate, using demand estimation methodology appropriate to the kind of system submitting the plan.

In response to comments, the Department has dropped the explicit requirement to identify unmet demand, although paragraph (b)(3) can be used to provide that information if it is available. Unmet demand becomes important in relation to service an entity provides on its fixed route. For example, if the entity could establish that its unmet demand on fixed route system was three percent, then comparable paratransit service also could have an unmet demand of three percent, not zero.

Finally, §37.139 contains a new paragraph (j), spelling out in more detail requirements related to the annual submission of plans (i.e., update). While the Department has no intention of requiring duplicative filings, and specifically states that only new information need be provided, the annual plan takes on new significance since the NPRM. Since there may be multi-year phase in, it is the annual plan that demonstrates the progress made to date, explains any delays, and projects the time for full compliance.

§37.141 Requirements if joint plan is submitted.

This section is new, and revises the general provision in the proposed rule allowing joint plans to be submitted, so long as they were submitted on January 26, 1992. Commenters had asked for provisions to facilitate joint plans. Joint planning for coordinated paratransit service is consistent with the ADA (see, e.g., H.Rpt. 101-485, Pt. 1, at 30).

Section §37.141 lays out a staged submission plan for entities who are participating in a joint plan. Every effort must be made to develop and submit every element identified in §37.139, by January 26, 1992, to the extent practicable. However, the section recognizes that there may be some cases in which bureaucratic red tape (the Federal government is familiar with this concept) delays the ability of willing parties to formally participate in plan finalization. When the final plan cannot be submitted by January 26, 1992, the final rule allows the entities participating in the joint plan to submit a final plan by July 26, 1992, if they do the following:

(1) Submit a general statement that they intend to file a joint coordinated plan;

(2) Submit a certification from each participating entity that they are committed to providing paratransit as a part of a coordinated plan;

(3) Submit a certification from each participating entity that it will maintain current levels of paratransit service until the joint plan begins;

(4) Provide as many elements of the plan as possible.

These provisions ensure that significant planning and plan implementation will begin by January 26, 1992, without precluding entities from cooperating because it was not possible to coordinate different public entities by January of 1992. The Department believes that this provision is consistent with the overall objective of the statute to provide transportation service to persons with disabilities in the most integrated setting possible. In no case will complete compliance for a coordinated plan be later than it would be for an individual plan -- that is, all plans must provide for full compliance by January 26, 1997.

The final provision in the section notes that an entity may later join a coordinated plan, even if it has its separate plan on January 26, 1992. To do so, the entity must provide the assurances and certifications required of all of the other participating entities.

§37.143 Paratransit Plan Implementation

Proposed rule §37.121 of the NPRM would have required each entity to begin implementation of its plan, pending any notice from UMTA. It also specified that an entity was to begin implementation of its plan, even if the plan includes a request for a waiver based on undue financial burden.

Many transit providers commented that it would be impossible to implement paratransit plans without additional funding. Other commenters supported the requirement to begin implementation immediately. One commenter noted that if entities had begun implementing the plan after the proposed rule was published, as suggested by the Department in the NPRM, they would be well on their way to being able to implement the plan after January 26, 1992.

The final rule provision remains unchanged from the proposed rule. As noted in the proposed rule, the ADA is landmark civil rights legislation, and the responsibilities of public entities to provide transportation service to persons with disabilities extends beyond their responsibilities as UMTA grantees.

§37.145 State comment on paratransit plans

The NPRM required each state to review each paratransit plan that was submitted to it, and to forward the plans to UMTA with a recommendation to approve or disapprove the plan. The states were to use the criteria UMTA will use in reviewing the paratransit plans submitted to it. Sixteen commenters provided input on this provision, and almost all were opposed. One trade association was in favor of the requirement, while almost every state that commented was opposed. Review of the plans by the states was viewed as a costly administrative task for which no funding was being provided. Some states were willing to undertake the task if funding were provided, although some did not want to review non-UMTA recipients under any circumstances. Disability groups commenting also were opposed, indicating that the time and priority needed to be placed on review of the plans could not be guaranteed at the state level, and that the responsibility should be centralized in UMTA.

The sentiments of the commenters were echoed in the June Advisory Committee meeting. The Department has revised the proposed provision in two ways in response to comments. As already discussed under §37.135, the states will receive only UMTA recipient plans -- from section 18 recipients that they administer and a small urbanized area recipients of section 9 funds administered by the state. Public entities who do not receive UMTA funds will submit plans directly to the applicable UMTA Regional Office (listed in Appendix B to the rule).

Second, the Department has modified the role of the state. Each state will not longer be required to conduct a complete review of the plan and submit it with recommendations to UMTA. However, each state will be required to comment on the plans. This comment is very important for UMTA to receive, since these states administer these programs on behalf of UMTA. Each state's specific knowledge of the UMTA grantees it administers will provide helpful information to UMTA in making its decisions. Accordingly, the final rule provision requires that the state collect all of the plans required to be submitted to it, certify that it has received all of the plans required to be submitted to it, and comment on the plan, responding to five questions identified in the rule.

§37.147 Considerations during UMTA review of plans

The proposed provision spelled out three factors UMTA would consider in reviewing each plan, emphasizing the elements they thought most important. These include a complete submission, with all of the elements of the plan, that the plan complies with the substance of the ADA regulation, and that the entity complied with the public participation requirements in developing the plan.

Few comments were submitted on these elements, although some commenters asked for the Department to state a timeframe within which it will complete review of the paratransit plans. One disability group recommended that specific staff be dedicated to paratransit plan review, criticism and assistance to transit providers to conform their plans to ADA mandates.

The Department has made minor changes to this provision, by adding that UMTA also will look at comments submitted by the states and will look at efforts by the entity to coordinate with other entities in a plan submission. These elements are not the only items that will be reviewed by UMTA. 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.

§37.149 Disapproved Plans

The proposed rule required an entity to resubmit its revised plan within 90 days of receipt of a letter of disapproval from UMTA. There were no comments on this provision.

The final rule adds an explicit reference to the requirement that the public participation requirements continue to apply to the amendment of a paratransit plan. This is the only change to the section.

§37.151 Waiver for Undue Financial Burden

Section 37.123(a) of the NPRM stated that a public entity required to provided comparable paratransit service under this regulation could apply for an undue financial burden waiver from providing that service, if the entity met one of three conditions set out in proposed §37.125. Section 37.125 proposed options for a trigger mechanism, designed to prevent entities from requesting a waiver for undue financial burden, unless the entity had attained a specific measure of performance. All three performance triggers are described below.

Option I provided that an entity would meet all of the service criteria. If the entity could not do so without a significant adverse effect on its overall service, then it may apply for an undue financial burden waiver. This option would permit any entity that believed providing complementary paratransit meeting the criteria would have a significant adverse impact on its overall service to apply for a waiver.

Option II was based on a trips per capita concept: the entity would be eligible to request a waiver if the entity could not provide as many trips per registered ADA-paratransit eligible person as it does for its fixed route trips per capita, based on general population, without there being a significant adverse effect on overall service. In this second option, the entity first calculates trips per capita based on the population of the service area divided into the number of fixed route transit trips provided. Second, the entity provides this same number of paratransit trips to persons registered and meeting the eligibility requirements of the part, on a per capita basis.

For example, if the population of the service area is one million persons, and the fixed route service provides 50 million annual trips, then the system provides 50 trips per capita. In this example, the trigger for this entity requesting an undue financial burden waiver request would be the inability to provide 50 trips per ADA-eligible and registered capita without a significant adverse effect on its overall service. (See 56 FR 13873).

Option III was based on the entity exceeding the average cost of providing comparable paratransit, as determined by data provided by the Department breaking costs down by average city size. For example, in cities with populations between 500,000 and 1 million, the Department's estimate for the average annual cost to provide paratransit service meeting the service criteria of the regulation at the time of the proposed rule was $5,782,000. If an entity in this city size category determined that its average annual cost for providing paratransit exceeded this amount, it would be eligible to apply for an undue financial burden waiver. As noted in the preamble, once more data was available from entities actually providing paratransit service, the model could be refined and actual average costs could change.

Over 100 comments were submitted on undue financial burden. Of those commenting on the triggers, commenters both liked and disliked all of the options, with Option I being the only option to receive more favorable than negative comments. There was not a pattern to the comments -- each option was considered either objective or arbitrary by commenters and each option had supporters and detractors among both disability groups and transit providers.

There were thirteen commenters in favor of Option I and eleven opposed. Those commenters in favor felt that it was the most fair, flexible and reasonable option proposed. One commenter stated that Option I was preferable, since expenses for transportation vary widely throughout the country. Another commenter favored this option because it allows for input from the local community. One commenter stated that this option better followed Executive Order 12612 on Federalism, because each urban area has different resources and limitations. Criticism of this option focused on its perceived vagueness which could result in difficulty in administration and lack of consistency in application. One commenter cautioned against the premise of measuring undue financial burden by what is taken away from fixed route transit.

Nine commenters favored Option II and thirteen opposed it. The comments related to this option were more varied. The minority of commenters who favored this approach stated that it was clear and objective and utilized a definitive standard. Several who supported this option recommended that the final rule provide that "linked" passenger trips were the appropriate measure. (a different meaning of the term that we use in the eligibility section). One commenter proposed that a cost cap be added to option two.

Opponents of Option II had a variety of reasons. The option was criticized for being too vague and having no relationship to cost. A few commenters stated that it encouraged discrimination by allowing a waiver application when a transit entity has more eligible or approved paratransit riders than expected. Several comments focused on the variables surrounding the statistics for per capita ridership for the general population and for persons eligible for ADA complementary paratransit service. One commenter stated that, depending on which variables were used, their costs for paratransit ranged from 7 percent to 100 percent of their fixed route budget. Another stated that, depending on which variables were used, its costs for paratransit ranged from $60 million per year to $500 million per year for the Option II (trips per capita) comparison, because the recent census did not include questions which could have provided this information. Another commenter stated that this option would be flawed if Section 15 data was used for comparison purposes, because previous record keeping was on the basis of 504, and transit systems have counted a larger universe than ADA paratransit eligible as eligible.

One commenter said that the comparison should be between the number of paratransit trips afforded to each person registered for paratransit and the number of trips taken on the regular transit system by average, typical riders of that system. A private transit provider stated that Option II assumed (incorrectly) proportionality. According to this commenter, research has shown that per capita paratransit ridership decreases with population, while per capita general transit ridership increases with population. Finally, one commenter stated that the frequency of travel on transit on a per capita basis would significantly understate demand. This was true, it was stated, because of the many modes of travel available to the traveler without disabilities in comparison to the lack of transit alternatives available to travelers with disabilities.

There were seven commenters in favor of Option III (city size) and twenty against. Commenters in favor noted that it was an objective criterion. The single largest criticism of Option III was that it was based on research from "fundamentally flawed" data which did not include data from most paratransit systems. Less specific criticisms stated that the estimates were arbitrary and unsupported. Others noted that the Department's preliminary estimates did not include estimates for cities under a population of 250,000; a few commenters included sample data for cities below the 250,000 population level, showing that costs for both fixed route and paratransit services varied widely, with specialized transit costs ranging from 3 percent to 15 percent of the totals. Based on this data, a commenter stated that average expenditure was not meaningful or relevant.

Other objections were based on the fact that UMTA formula funds are distributed to urbanized areas, not cities, and that the city size categories were overly broad. For instance, an area of 1.1 million population would have a threshold nearly twice as high as an area with a population of .9 million. Some commenters stated that the estimates for providing paratransit for their city size were greater than their annual Federal operating assistance. Two transit authorities requested that New York be removed from the over 1 million city size category, since it weighted the average disproportionately for the other cities. One commenter stated that in order to make Option III workable, a uniform manner of reporting costs and levels of service was needed. More general criticism of option three came from a state department of transportation, stating that population size is not always the issue for determining costs; in rural areas, geographic area and the entity's operation were important considerations. Another critic stated that Option three did not take into consideration unique factors for a particular area. One trade association recommended that Option III be revised to require an entity's cost to exceed the average cost of providing complementary paratransit by more than 10 percent of the average before a request for a waiver based on undue financial burden would be considered.

In addition to these options, the Department specifically requested comments on other possible measures of performance that could be used as a trigger mechanism for requesting an undue financial burden request. In response, one commenter suggested that a combination of the above options would be most suitable. Several commenters suggested a cost cap based on various percentages of an entity's operating budget including, in one case, three percent (a number with some historical resonance). One transit authority suggested a flexible numerical formula, such as that discussed in the legislative history, which takes into account local characteristics such as population, population density, level of paratransit service currently being provided, residential patterns, and the interim degree of accessibility for fixed route service.

Because of the diversity of comments received on this topic, we made the issue one of the focuses of the June Advisory Committee meeting. The Advisory Committee used working groups for two days to focus on four principal areas of the rulemaking, including undue financial burden. (The other three groups discussed the technical standards for accessible vehicles and facilities, ADA paratransit eligibility criteria, and ADA paratransit service criteria.) The consensus of the working group on undue financial burden was to support Option II, the per capita model. The working group took examples of service currently being provided around the country and developed estimates of trips per capita to be provided to ADA paratransit registered persons, based on a national estimate of two percent of the population having a disability that would make them eligible for paratransit service.

Both representatives from disability groups and transit providers believed that this represented a fair measure of service (except for perhaps New York) that could be used to prevent entities who didn't need a waiver from applying for a waiver based on undue financial burden. The Department has considered all of the comments, and the recommendations from the Advisory Committee. For purposes of this final rule, the Department has decided to eliminate triggers from the provision for determining when an entity can request a waiver. The Department does not believe that a trigger is necessary, since it has adopted a five-year phase-in for paratransit service.

The intent of the triggers was to develop a measure of service that could be required to be demonstrated before an entity was eligible to request waiver relief. In the final rule, the information contained in the triggers will be elements of the undue financial burden waiver request. Since entities will be able to propose implementation over a five year period, the Department believes that requests for undue financial burden waivers will be significantly reduceed.

Each locality can develop a plan specifically geared to local circumstances. While not all jurisdictions will receive five years, each entity will be able to describe their unique circumstances. .

Data from both Option I and Option II have been included as factors that the UMTA Administrator will consider when making his decision about whether to grant or deny a request for an undue financial burden waiver. The data available in Option III is information that will be used by the Department in assessing paratransit plans in general.

Returning to a discussion of the section at issue, §37.151, the Department has revised this section to be consistent with the decision to eliminate the section on triggers. Thus, new §37.151 lays out the circumstances in which an entity may request a waiver from paratransit service. Generally, the section allows an entity to request a waiver at any time it believes 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.

§37.153 UMTA Waiver Determination

In the proposed rule, this section laid out what would happen if the UMTA Administrator grants a waiver for undue financial burden. Specifically, the NPRM stated that the waiver would be for a specified period and that the entity would be required to do something to meet its responsibilities under the ADA. The Administrator would make a determination of what was appropriate on a case-by-case basis.

The Department received little comment on this provision, with one individual with disabilities stating that an entity should not receive a waiver for undue financial burden if only a minimum amount of paratransit service is being provided. Groups representing persons with disabilities were interested in the basic complementary paratransit service which must be provided by a public entity even though an undue financial burden waiver is granted. One individual felt that the waiver should not be granted to an entity meeting only minimum service criteria. A disability group felt that there were certain service characteristics which cannot be compromised even when a waiver is granted.

A transit operator contended that if minimum service is defined as "along key routes during core service hours," it will result in displacement of service to current passengers. It urged the Department to allow decisions as to minimum service level to remain with the local planning participation process. A member of the Advisory Committee recommended that the community be given real choices among service to be provided. One operator wanted to know if special provisions were being considered for small entities which operate less than five paratransit vehicles. A transit provider suggested that there should be a time limit for the validity of undue financial burden waivers (perhaps one to three years) and their circumstances should be reviewed frequently. This section already specifies that any waiver will be of a limited and specified duration. Since each waiver will be granted based on individual circumstances, the Department does not deem it appropriate to specify a generally applicable time period.

Some of these comments have been adopted in other sections of the regulations. For example, the Department requires entities to look at number of trips provided to each person on a monthly basis first, when determining where it would propose a lesser level of service. As discussed elsewhere in this preamble, the Department has strengthened, as a general matter, the public participation requirements involved in every aspect of the paratransit plan development, execution, and evaluation.

Concerning the comment that service along key routes would result in displacement of service to current passengers, we are not sure if the commenter understood the proposed rule as drafted. Requiring that an entity provide paratransit service at least during core hours along key routes is one option that the Administrator has available to him 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 some 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. Accordingly, the only change in this section from the proposed rule (other than renumbering) is to include a specific provision that the Administrator can return the application for more information if necessary.

§37.155 Factors in Decision to Grant an Undue Financial Burden Waiver

The proposed rule listed nine factors the Administrator would consider in making his decision whether to grant an undue financial burden waiver request. These included 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, and any unique circumstances that may affect the entity's ability to provide paratransit service. The proposal also included an explicit statement that costs attributable to complementary paratransit were limited to service provided to persons who are ADA paratransit eligible under this part.

Many commenters discussed these factors, with the most comments on attributable costs. Groups representing persons with disabilities believe that the UMTA Administrator should not consider costs attributable to the provision of non-ADA eligible transit. A state health and human services department commented that a cost element that should be considered is the cost to the community of not providing the proposed services, i.e., the cost of institutionalization and community support. Public transit providers believed that they should be able to count funds other than their own in meeting their financial obligation. One transit provider stated that the cost of transporting a companion should count toward the undue financial burden waiver. Other transit providers expressed concern that individuals who are not ADA-eligible will be denied their customary service because funds will necessarily go to the higher cost of paratransit service. Another cost related factor which received considerable comment was the issue of available resources. Several commenters pointed out that consideration of this factor penalized those transit providers which were successful in raising or identifying revenue sources for transit.

Several disability group commenters endorsed the NPRM's "efficiency" factor, noting that there is waste in large systems and management issues which must be examined. One transit agency questioned how UMTA could ensure that agencies were completely open with their cost records and cautioned that such a provision would require an on-going audit process beyond UMTA's resources. As an alternative, a self-certification, which would be subject to challenge and audit, was suggested.

Several commenters focused on the field of public participation. One disability group stated that the regulation should provide explicitly for public participation in the review of an entity's request for an undue financial burden waiver and the decision whether to grant a waiver. Another stated that the regulation should require that public comments and testimony on the waiver application become part of the record. Another disability group suggested that the regulation should require a transit authority to publish notices of its intent to seek an undue financial burden waiver and seek public comment. Conversely, a transit provider stated that it was not necessary to hold a public hearing before applying for an undue financial burden waiver. The proposal of fare increases as a factor in the consideration of undue financial burden waivers was endorsed by transit providers.

All of the factors that were proposed have been included in the final rule, since the Department continues to believe that they are adequate indicators in level of effort. In response to some of the comments, we have added additional factors that the Administrator will consider. First, as already mentioned, we have added as a factor the level of per capita service being provided, both for.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 statistic measures comparability to some extent, regardless of the specific service criteria, and should assist in a general assessment of level of effort.

The Department affirms that 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 have been added, however, which we believe enhance the Department's ability to assess real commitment to these paratransit provisions.

First, the Department will require a statistically valid methodology for estimating the number of trips provided by a paratransit system that are not 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 some larger 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. The section is intended to cover those few jurisdictions that have what amounts to constructive receipt of funds, but when the funds do not flow through their treasury before being allocated to another entity providing paratransit service. This provision does not allow funds of a private non-profit or other organization which uses Department of Health and Human Services grant or private contributions to be counted toward the entity's financial commitment to paratransit.

An example of this is a state which has a statewide tax or levy which is set aside for transportation needs, with service provided at the local level. While each county or other taxing jurisdicition is allocated a certain percentage or amount set aside for this purpose, the actual recipient of the funds may not be the transit provider. Funds could flow directly to the county or other provider. Since the funds are intended for use in a specific area, and the transit provider is responsible for providing paratransit in the area, and it is only because of some administrative determination that the money is not being put in the entity's treasury, this money is considered part of the resources available to the public entity, and may be counted.

Subpart G - Provision of Service

§37.161 Maintenance of Accessible Features - General
§37.163 Keeping Vehicle Lifts in Operative Condition - Public Entities

The NPRM proposed requiring that accessibility features of vehicles and facilities be maintained in proper operating condition. With specific reference to lifts, the NPRM proposed that they be checked daily, before the vehicle went into service. If the lift didn't work, the vehicle would be put into the shop before going back into service. (This idea was proposed at the January meeting of the Advisory Committee, at which it enjoyed support both from disability group and transit industry representatives.) The NPRM proposed an exception for small operators from the requirement to keep a vehicle out of service pending lift repair, for up to five days, in a circumstance where keeping the vehicle out of service would reduce service to the public (e.g., there is no reserve vehicle).

All disability group commenters and some transit providers commenting on the issue favored the NPRM requirement of cycling the bus lift daily and taking the bus out of service if the lift did not work. This was said to be vital to ensuring that accessible service was a reality and not just an empty promise. Disability groups cited much unhappy experience with non-working lifts on a number of systems. Some transit providers said that cycling the lift weekly was enough. Others added that a vehicle should not be pulled out of service if good faith efforts are being made to fix the lift, obtain parts, etc., or if the vehicles immediately ahead of and behind the vehicle with the broken lift had working lifts. A transit trade association said there should be only a general maintenance requirement, leaving specific requirements to operator discretion.

Most disability group commenters either opposed any exception to the requirement to take a vehicle out of service when the lift didn't work or said that such an exemption should be limited to very small operators. Transit industry commenters, in their written comments, did not discuss extending this option to larger operators.

This proposal was the subject of much discussion at the Advisory Committee meetings. Disability groups continued to press for adoption of the proposals. Some transit representatives said that they believed that daily (or, at any rate, frequent) cycling of lifts was a very good idea, that they did it themselves, but that they adamantly opposed having the rule tell them to do what they already did. Others suggested modifications to the daily cycling requirement. One large operator said that, given the size of its fleet, daily cycling would take an inordinate amount of staff time and therefore less frequent cycling should be permitted. Another operator, which has a policy of daily cycling, was forced by budget pressures to cut back to every-other-day cycling, and reported no ill effects in terms of the percentage of lifts which failed to operate.

With respect to the out-of-service requirement, an operator suggested that his transit authority's policy -- to dispatch a special vehicle to pick up passengers stranded by a non-working lift -- should be considered as an alternative. Another representative asked that methods of checking lifts other than cycling them, if available, be recognized for use.

Operators asked for extension of the proposed exemption to large operators, in situations where there was no reserve vehicle to put in the place of a vehicle with an inoperative lift, which would result in less than scheduled service on a route. Another suggestion was for a recordkeeping requirement concerning lift maintenance, though without any specific substantive standard for maintenance. Disability group representatives continued to favor the NPRM requirement, in part on the ground that in the absence of daily cycling, the first person to learn of a broken lift might well be a stranded passenger. In addition, one disability group representative said, daily cycling of lifts will give provider personnel some useful daily experience in working with the mechanisms. An operator noted that, for a wheelchair user, not having a working lift was the equivalent, for other passengers, of having a bus door jammed shut.

In the final rule, the Department is splitting the discussion of maintenance into two sections. In §37.161, the Department adapts language which appears in both the DOJ Title II and Title III rules concerning maintenance of accessible features. This language requires private and public entities to maintain accessibility features in operative condition, but does not prohibit "isolated or temporary" interruptions in service or access due to maintenance or repairs. Obviously, a rule cannot prevent a machine from breaking down occasionally.

To this DOJ formulation the Department is adding a paragraph which, in the NPRM, was in the facilities portion of the proposal. It requires the prompt repair of accessibility features. Comments on this paragraph from operators stressed that promptness may vary depending on a variety of factors, including budget, maintenance priorities, etc. This is surely true; the point of the rule is to ensure that repair of accessibility features is a priority. The rule does not state any particular deadline for fixing an inoperative accessibility feature, however. The second sentence of this paragraph provides that when an accessibility feature is out of order, the entity shall take reasonable steps to accommodate individuals with disabilities who would otherwise use the feature.

With respect to keeping vehicle lifts in operative condition, the Department has decided to apply the requirement only to public entities. Private entities are covered, with respect to lifts, by the general maintenance provision. Particularly for small private entities, it could be onerous to require more. Moreover, private entities often operate in a competitive environment. If one firm has a track record of good lift maintenance, and a competitor a poor record, business from customers with disabilities is likely to flow toward the former. Public transit providers, on the other hand, are usually in something approaching a monopoly situation. If the local transit authority's bus lifts frequently are out of order, a passenger does not usually have other public transit alternatives.

In response to the discussion of the Advisory Committee and other comments, the Department is modifying the NPRM proposal for daily cycling of lifts. Given that a variety of intervals for testing lifts may be successful in detecting breakdowns, the Department is requiring a system of regular and frequent checks of lifts, sufficient to determine that they are operative. A "check" may be a test of a lift by a means other than cycling the lift, if the operator has a workable alternative method. The Department regards such checks as essential, lest the first person to discover that a lift is inoperative be passenger stranded at the bus stop as a result of lift failure.

When a lift fails in operation, the transit authority needs to know the fact as soon as possible, so that it can plan corrective action and provide accommodations for inconvenienced users. The vehicle operator must report the failure by the most immediate means available.

When a lift is discovered to be inoperative, the vehicle must be put into the shop before the beginning of the vehicle's next service day and the lift must be repaired before the vehicle returns to service. This is consistent with the notion that a broken lift is like a door jammed shut; something that prevents access to the vehicles needs to be fixed before the vehicle is capable of serving the public.

There is an exception to this rule, however. In response to comments and Advisory Committee discussion, if there is no reserve vehicle (accessible or inaccessible) to replace the vehicle with the inoperative lift, such that taking that vehicle out of service will reduce service to the public, the entity may keep the vehicle with the inoperative lift in use for up to three days (larger operators) or five days (smaller operators). This is intended to give the operator time to obtain parts or make other preparations for fixing the lift for a short period of time, without reducing service. This short period of time should not put passengers in a worse position than in a situation where an inaccessible reserve fleet vehicle is used in place of a vehicle in the shop.

Finally, as a special case of the requirement of _§37.161 (b) that entities provide accommodations when an accessibility feature is out of order, the rule requires that when a bus is operating on the street with a broken lift, and the headway to the next bus with a working lift exceeds 30 minutes, alternative transportation will be provided. This applies both in the situation where a lift breaks down in service and in the situation where a bus with an inoperative lift is operating during the three or five day exception discussed above. This provision responds to discussion in the Advisory Committee concerning provision of a special vehicle to accommodate passengers inconvenience by problems with inoperative lifts.

§37.165 Lift and Securement Use

The use of securement, particularly with respect to three-wheeled scooters and other non-traditional wheelchairs is a long-running issue. Under the ADA, service that is accessible must be available to persons with mobility impairments no matter what kind of mobility aid they may use, including crutches, walkers, or three-wheeled mobility aids (see, e.g., S. Rept. 101-116 at 48).

The Department has taken a similar position under section 504 of the Rehabilitation Act. (See 51 FR 19024; May 23, 1986.) A March 1990 section 504 NPRM proposal included a requirement to provide service to all kinds of wheelchairs in common use, generating the highest volume of comments on any issue raised by that rulemaking. The comments to the March 1990 NPRM were discussed extensively in the preamble to the October 4, 1990, final rule. (See 55 FR 40767-40770.) It is not necessary to repeat that discussion here.

This issue was again the subject of many comments to the October rule. These comments tended to reiterate the points of view explained in comments to the March 1990 NPRM, and they did not present significant additional information. Disability community commenters almost unanimously opposed permitting transit providers any discretion to deny transportation to non-traditional mobility devices or to require transfers to a vehicle seat. They said that doing so would be discriminatory, since other passengers and objects they carried were not subject to similar requirements. They also pointed to the lack of actual accident data supporting claims that these devices pose a greater safety hazard than other devices.

A majority of transit providers continued to express concern about the safety and liability risks involved with carrying unsecured mobility devices, especially those, like the three-wheeled scooters, that are structurally weaker or less stable than others. A number of transit authorities, however, reported success with securing many non-traditional devices and said they had not encountered significant safety or liability problems.

Discussion of these issues continued at a session on the subject at the January 1991 Transportation Research Board meeting in Washington, D.C., and at the January Advisory Committee meeting. Participants in these discussions were aware that the Access Board, in its transit vehicle guidelines, intended to establish dimensions and a weight-bearing capacity for lifts. These standards, most participants agreed, would address a portion of the problem, in that mobility devices that did not fit the Access Board standards would not be required to be transported. (These standards are the source of this rule's definition of a :common wheelchair.")

The NPRM proposed that, if a mobility device can fit onto a lift meeting Access Board standards, the entity must allow the device to ride on the vehicle. The transit provider could not deny service based on its view that the device could not satisfactorily be secured. Based on January discussions of the Advisory Committee, the Department proposed to permit transit providers to refuse to allow mobility devices to "park" in locations in a vehicle other than the designated securement locations. The transit authority was to have a device to confine the vehicle to the securement area, even if it could not be secured as provided in the Access Board guidelines.

In comments to the April 4 NPRM, disability community and transit industry commenters continued to disagree about securement issues, based on the same grounds as in prior rulemakings. There were fewer comments on the subject than in the past, and the tone of the comments was, on the whole, somewhat more moderate. As with past rulemakings, there was no factual information on actual experience concerning risks of carrying non-traditional mobility devices (one comment mentioned a 1979 accident with a three-wheel scooter that occurred off the bus that had led the provider to ban such devices).

At the June meeting of the Advisory Committee, there was comparatively little discussion of this issue. Clarification was requested on the relationship between the requirement to "confine" mobility devices and the requirement to carry such devices even if they could not, as such, be "secured."

The Department, consistent with the ADA's requirement for nondiscriminatory service and its legislative history, in view of the ATBCB's definition of a "common wheelchair," and given the continued absence of information in the record that would support a finding that carrying non-traditional wheelchairs would constitute a "direct threat" to the safety of others, is retaining the basic requirement proposed in the NPRM.

Under this requirement, any "common wheelchair" (i.e., one that will fit on a lift meeting Access Board guideline requirements) must be carried. The provider cannot deny service on the ground that the wheelchair is not secured to the provider's satisfaction. The transit authority may require that the wheelchair park in one of the securement locations (generally, the Access Board guidelines require two such locations in a vehicle) and that the user permit the device to be secured using the vehicle's securement system. If the vehicle (e.g., a currently-existing bus) does not have a securement system meeting standards, the entity must still use a securement system it has to ensure as best it can, that the mobility device remains within the securement area.

Another issue that has been discussed in this series of rulemakings is transfers. Should the provider be able to require a passenger to transfer out of his own mobility device to a vehicle seat? The NPRM proposed that transfers could be required only on small vehicles, and then only under certain conditions. There were relatively few comments on this issue. A few disability community commenters and some transit providers were comfortable with the NPRM proposal. Other transit providers preferred to be able to mandate transfers whenever they thought it necessary, on the basis that it would enhance safety. Most disability community commenters preferred to prohibit mandatory transfers, on the basis that the chances of injury during transfer were significant, and that passengers were in the best position to balance the reasons for transferring or not transferring.

The Department is persuaded that it is best to leave the decision about whether to transfer with the passenger. It is appropriate for the provider to inform the passenger about what may be the risks of transferring or not transferring and to make a recommendation. But the transit authority is less likely than the passenger to know the particulars of the individual's disability and the effects of a transfer. The passenger, knowing this information and having been given the transit's authority's assessment, can make his or her own decision, which the transit provider must respect.

Another securement-related issue concerns operator assistance. Some individuals with disabilities cannot secure their own mobility devices using securement systems in some vehicles. In the NPRM, the Department proposed to require vehicle operators to assist passengers with securement, where necessary or requested by the passenger. We were aware that some transit agencies, for reasons such as concern over liability or provisions of labor-management agreements, have policies against vehicle operators leaving their seats to assist a passenger. The NPRM provision proposed to override such policies.

Disability community comments all favored the NPRM requirement. Some transit authority commenters favored the provision (some with the stipulation that the driver not have to leave the bus), while others said the matter should be left to providers' discretion.

Particularly given requirements for the use of securement systems, and the varying abilities of passengers to use various securement systems without assistance, it is difficult to imagine how the requirements of the rule could be carried out if drivers remained in their seats and did not provide securement assistance, when needed. Likewise, with some lift systems (e.g., rear-door lifts), the driver must leave his or her seat to operate the lift. On vehicles that use ramps rather than lifts for access (particularly if the ramp has a relatively steep), the driver will probably have to leave the vehicle to assist a passenger using a manual wheelchair in getting up the ramp. In order to make the access promised by the ADA a reality, the Department must require assistance from vehicle operators, even if that means they they must leave their seats.

In the NPRM, the Department neglected to discuss the use of lifts by standees, an oversight that was brought to our attention by a substantial number of disability community commenters. Some comments from transit providers suggested there be limits on the use of lifts by standees (e.g., only where there are handrails, only in a wheelchair provided by the transit authority). Other transit provider comments opposed all standee lift use on safety grounds.

Consistent with requirements of the ADA discussed above, persons who use canes or walkers and other standees with disabilities who cannot readily climb steps into a vehicle must be permitted to use lifts. This is important, among other reasons, because based on the premise that standees can use lifts, the Access Board found it unnecessary to establish a standard for stair riser heights in vehicles that use lifts. Lifts meeting Access Board standards will have handrails. We have some doubts about the practicality of providers carrying wheelchairs on their vehicles to use for standees who are trying to access a vehicle via the lift.

§37.167 Other Service Requirements.

This section, which applies both to public and private entities, contains a variety of service related requirements. The only one of them that was the subject of a significant amount of comment was the NPRM proposal to require announcing stops. A substantial number of transit industry commenters said that to announce all stops would be onerous for drivers (especially in urban areas where there was a stop every block) and suggested that stop announcements be made only at transfer points or major intersections. Others either favored the NPRM requirement or opposed any requirement in this area, saying it should be left to local discretion. Some operators of small vehicles said it should not be necessary for a driver to use a public address system to make announcements, since in a small vehicle the driver could be heard without amplification. Disability community commenters, especially those concerned with visual impairments, endorsed the NPRM proposal. At the Advisory Committee meetings, most members appeared to believe that announcements less frequent than every stop would be sufficient.

The Department will require announcements at major transfer points, other major intersections or destination points, and intervals along a route sufficient to permit persons with visual impairments to orient themselves to their location. In addition, as virtually all commenters agreed, the entity would announce stops on request. Where the driver's voice would carry the message without amplification on a small vehicle, that would be sufficient.

Most other provisions of this section were not controversial, though some of them (e.g., specific mention of permitting service animals on vehicles, prohibiting the entity from declaring a stop off-limits to lift use) were suggested by commenters rather than deriving from the NPRM itself.

One other concern that has come to the Department's attention 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. This is a situation in which a facially neutral action (closing the doors in a given number of seconds) operates disproportionately to the disadvantage of individuals with disabilities. The final rule would require operators to take appropriate steps to give individuals with disabilities adequate time to board or disembark.

§37.169 Interim Requirements for Over-the-Road Bus Service Operated by Private Entities.

Section 306(a)(2)(A) of the ADA requires the Department to issue interim regulations for over-the-road bus[es] (OTRB) service provided by private entities. These requirements cannot include mandates for wheelchair lifts or the purchase of boarding assistance devices. It should be noted that the Access Board transit vehicle guidelines include certain accessibility feature requirements (short of wheelchair lifts) for OTRBs. (See part 38, subpart G of this regulation)

Because the statute postpones for several years final requirements concerning accessibility of OTRBs, pending the Department's consideration of a study to be done by the Office of Technology Assessment on issues related to OTRB accessibility, the Department believes that the key to "providing accessibility to such bus[es]" is ensuring that services provided by the private entities involved facilitate the use of the OTRBs by individuals as much as practicable. The requirements proposed in the NPRM went to such areas as avoiding arbitrary denials of service, provision of boarding assistance, stowage of mobility devices and other assistive devices, carriage of service animals, charges for required services, and advance notice.

Most commenters, from all interests represented, supported the idea that boarding assistance should be required. Disability groups said that the final rule should clarify that even if the passenger voluntarily travels with an attendant, boarding assistance remains the bus company's responsibility. On this point, one private bus company said that a passenger should provide an attendant to help with boarding, and that the driver should be allowed to decline to assist if he felt it would be unsafe to do so.

Most disability group commenters opposed the portion of the proposal that would allow refusals of service on the basis of safety, several suggesting that the DOJ "direct threat" language should be used if anything was necessary. A bus manufacturer asked for battery stowage information. Several disability group comments supported the wheelchair priority provision. Disability group comments opposed the advance notice provision, though some said such a provision might be permissible when boarding assistance was needed at an unstaffed stop. Some disability group comments proposed prohibitions on number limits or attendant requirements.

During a discussion of over-the-road bus issues at the Advisory Committee meetings, a representative of a bus association said that attendants are required in some instances, leading to renewed calls by disability group representatives for a provision prohibiting attendant requirements.

The Department is adopting the NPRM provision with a few modifications. The refusals of service provision based on safety considerations is being dropped, in the belief that the povision in the nondiscrimination section on violent or disruptive behavior will suffice for this purpose. The advance notice provision will be limited to situations in which boarding assistance is requested.. We recognize that disability groups heartily dislike advance notice requirements, but when an accommodation is required, in a situation in which the entity is unlikely to be able to provide the accommodation without knowing about it in advance, such a requirement seems unavoidable. An advance notice requirement could apply only to boarding assistance situations, however. The reference to service animals is being dropped as duplicative, since the service animals provision of §37.167 applies to OTRB service.

The boarding assistance provision is being retained, and a provision prohibiting attendant requirements was added to §37.5. These provisions are consistent with the ADA, which does not call for attendant requirements (see, e.g., S. Rept.101-116 at 74), and respond to comments on these subjects. Concern about passengers meeting their personal needs is not a sufficient reason for requiring an attendant. Passengers are the best judges of how to meet their own personal needs. Bus company personnel are not, of course, required to perform personal care attendant-type services for passengers.

The final rule also retains the provision concerning baggage priority for mobility aids. The Department believes, given that for a wheelchair user, travel without the wheelchair is futile, it is more important that the wheelchair travel with its user than that luggage travel with other passengers.

§37.171 Equivalency Requirement for Demand Responsive Service Operated by Private Entities Not Primarily in the Business of Transporting People.

There were no comments on this section, which is taken directly from the statute. It is closely related to the private entity requirements of §§37.101 - 37.105.

§37.173 Training

The proposed rule specified training to proficiency and required that service be provided competently and courteously. Almost 50 comments were received on the requirement, and virtually all commenters were supportive of the requirement to ensure training, with several noting that training is an essential provision in ensuring accessible transportation. There was little disagreement about the level of specificity of the provision, which the Department had requested comment on in its October 4, 1990, rule implementing the acquisition requirements of the ADA, as well as the April 4, 1991 NPRM. The preamble to the proposed rule raised for comment the rule's flexibility in allowing each transit provider to continue or improve its training program as needed, without specifying particular provisions. While there were not objections to the provision, nearly half of the comments included specific suggestions for essential elements of a training program. Examples of these comments include specific training in the proper handling of auxiliary aids, role playing by the employee to enhance understanding of the person with a disability being served by the transportation system, and training in the right of a person with disabilities to refuse priority seating if the person wishes to do so. Both transit providers, individuals, and organizations representing disability groups recommended that employees be trained in sensitivity and disability awareness.

One-third of the commenters recommended that entities include persons with disabilities either in the development of the training program or in the provision of training itself. The rationale of these comments is that persons with disabilities who use public transportation are in the best position to know the types of problems that exist and the best techniques and information for employees to have. One commenter suggested that persons with disabilities be provided mobility training to determine if use of a fixed route accessible system is feasible.

Other comments submitted by at least one commenter include the request that the training be subject to the public participation requirements of the rule, that there be the maximum level of local flexibility in developing the training program, that the Department be more prescriptive in the contents of the training provision, and that the training provision apply to the employer as well as the employee.

The training provision remains the same as it appeared in the proposed rule. The Department agrees with many of the comments submitted to it, and believes that the training provision, as drafted, will be an effective tool in ensuring adequate training. By retaining a general provision, we are allowing properties who already have good training programs to continue uninterrupted. Also, keeping it general allows each property to develop a new program or amend an existing program to be the best training program for the particular characteristics of the transit provider.

Good training, in both people skills and equipment skills, is essential to long-term satisfaction with transportation service. We believe that the strong public participation process mandated throughout this rule will aid local providers in developing the best plan to suit local needs.

49 CFR PART 38 - ACCESSIBILITY STANDARDS FOR TRANSPORTATION VEHICLES

Part 38 contains accessibility standards for all types of transportation vehicles. The part is divided into vehicle types: Subpart B, Buses, Vans, and Systems; Subpart C, Rapid Rail Vehicles and Systems; Subpart D, Light Rail Vehicles and Systems; Subpart E, Commuter Rail Cars and Systems; Subpart F, Intercity Rail Cars and Systems; Subpart G, Over-the-Road Buses and Systems; and Subpart H, Other Vehicles and Systems.

Under the Americans With Disabilities Act, the Architectural and Transportation Barriers Compliance Board (Access Board) is charged with developing guidelines for defining accessible vehicles and facilities. Also under the ADA, the Department of Transportation must promulgate regulations that are consistent with the Access Board's standards.

Part 38 is the Department's promulgation of standards consistent with promulgation of the Access Board's vehicle guidelines. The only changes we have made to the guidelines are editorial in nature; for example, we have changed references to DOT regulations which must be cited differently to be consistent with FEDERAL REGISTER cross reference style. The comments submitted to the Access Board as well as comments submitted to DOT on these standards (which were forwarded to the Access Board) are summarized in the preamble to the Access Board's guidelines. What follows below is a brief discussion of the key accessible vehicle issues for transportation providers.

(1) Section 38.2 contains the concept of equivalent facilitation, authorized for the first time in the final rule. Equivalent facilitation is a concept drawn from the longstanding Uniform Federal Accessibility Standards for Facilities. The concept recognizes that there may be unique circumstances in which an entity may be able to meet the intent of the standard and the level of accessibility required by the standard without being able to meet the exact provision of the standard. Under the provisions of the proposed rule, this entity would be in violation of the standard and would have no redress.

With the concept of equivalent facilitation, an entity is permitted to request approval from the Department for an alternative method of compliance. The alternative must meet or exceed the level of accessibility specified by the standard. As discussed in the preamble discussion for Part 37, §37.7 contains the method for an entity to request approval from the Department. Paragraph (b) states that a determination will be made by the Administrator on a case-by-case basis and that the public participation requirements under the part apply to the application decision. The Department intends to seek the advice of the Access Board in making its determinations concerning equivalent facilitation.

(2) Section 38.4 contains a provision allowing for "dimensional tolerances". The concept of dimensional tolerances recognizes that materials may expand or contract due to changes in weather or as the result of aging of the material. Because of this, standards met during construction or manufacture may not continue to meet the standard over time. Variations sof this kind, beyond the control of the entity and within the standard industry practice do not constitute a violation of the Part.

(3) Section 38.23 contains a general requirement for securement locations on buses and vans, and includes a change from the proposed rule. The NPRM required a minimum of one securement location for each vehicle. The final rule specifies a minimum of one location for vehicles under 22 feet in length, and a minimum of two for vehicles over 22 feet. There was broad support for the final rule provision, including from the American Public Transit Association.

(4) Section 38.23(b) contains the specifications for bus and van lifts. (As a practical matter, the lift specifications are the same for all vehicle types. The discussion in this paragraph applies equally to these other vehicles.) The standard calls for a lift dimension of 30 inches wide by 48 inches long, measured from two inches above the platform surface. The technical measurement specification of two inches above the platform surface is new in the final rule. This change acknowledges that the door structure of some buses would not permit the 30-inch platform unless the structure of the door frame was modified. By measuring the lift two inches above the platform surface, the standard allows a narrow platform at the bottom only, eliminating the need to redesign door frames but still allowing access of mobility aids.

(5) Section 38.23(c) contains provisions for the slope of a vehicle ramp. There is a new formula in the standards, in recognition of practical difficulties of making ramps workable in a vehicle setting. As explained by the Access Board in its preamble discussion of slopes:

In view of the factors which could affect ramp slope, a formula has been included in the revised provision. In general, the least slope practicable must be obtained, and may not exceed 1:4 when deployed to ground. For purposes of determining the "normal" deployment condition, the provision assumes a 6-inch high curb. Further, a slope of 1:4 is permitted if the vertical floor height is 3 inches or less above a 6-inch curb.. This would require a ramp approximately 1 foot long and would be short enough to be negotiable by many people. If the floor height does not exceed 6 inches, a slope of 1:6 would be permitted and a slope of 1:8 would be permitted if the floor height is 9 inches above the curb. A slope of 1:12 would be required for greater rises.

(6) Section 38.53 contains standards relating to the maximum horizontal and vertical distances allowed between rail cars and station platforms. The final standards amend the proposed standards, and reflect the different circumstances possible in providing accessible transportation in key and new stations over the next several years. First, the standard for new construction (new vehicles/new stations) remains as proposed at a 3 inch horizontal and 5/8 inch vertical gap. If for some reason a new rail system is not able to meet this standard, they may apply for application of the equivalent facilitation provision in §38.2. Existing stations create a problem for this general standard, however. There is now a standard for new cars in existing stations of a 1 1/2 inch vertical gap and a 3 inch horizontal gap. These same measurements are used as a standard for new vehicles in existing stations with curved platforms. Finally, for retrofitted vehicles (overhauled to meet the one car per train rule), they would need to have one door that meets a horizontal gap of 4 inches and a vertical tolerance of 2 inches.

REGULATORY ANALYSES AND NOTICES

Executive Order 12291 and Department of Transportation Regulatory Policies and Procedures

This is a major rule under Executive Order 12291, in that its expected annual costs exceed $100 million. It is also a significant rule under the Department of Transportation's Regulatory Policies and Procedures. The Department is preparing a Regulatory Impact Analysis which will be filed docket for the rulemaking. The analysis is undergoing final refinements at this time, and we expect it to be completed and placed in the docket in the near future. The rule has been reviewed by the Office of Management and Budget under Executive Order 12291.

As the analysis shows, the costs of implementing the requirements of this rule are expected to be high. These costs are driven by the statutory requirements of the ADA itself. These statutory requirements were enacted after lengthy negotiation and debate involving disability groups, the transit industry, the Administration and Congress. The Department has used its discretion under the ADA conservatively, to minimize the addition of costs to public and private entities beyond what the statute itself imposes.

Paperwork Reduction Act

This rule includes information collection requirements subject to the Paperwork Reduction Act. These include the requirements for submission of certifications concerning inaccessible used vehicles and the submission of plans for complementary paratransit and key station modifications. A request for Paperwork Reduction Act approval has been submitted to the Office of Management and Budget in conjunction with this rule. Information collection requirements are not effective until Paperwork Act clearance has been received.

Executive Order 12250

The portion of this rule amending 49 CFR Part 27, the Department's section 504 rule, has been reviewed by the DOJ under Executive Order 12250. Rules implementing the ADA are not subject to DOJ review under this Executive Order. However, given the Department of Justice's deep involvement in implementing the ADA, the Department provided a copy of this to the DOJ for review in advance of its publication.

Regulatory Flexibility Act

Under the terms of the Regulatory Flexibility Act, this rule could have a significant economic impact on a substantial number of small entities. The entities would be both small private and public entities that are subject to ADA accessible transportation requirements. The Regulatory Impact Analysis discusses impacts of the rule on small entities, serving the purpose of a Regulatory Flexibility Analysis. We would point out that these impacts are required by the ADA itself, and the statute gives the Department little discretion to contrive less burdensome requirements for small entities.

Executive Order 12612

This rule will have some Federalism impacts. A number of actions (e.g., providing complementary paratransit, buying all accessible buses) are mandatory for state and local agencies that, under previous regulations, were discretionary. Nevertheless, these requirements are statutory, and the Department does not have discretion to avoid imposing them. The Regulatory Impact Analysis for this rule discusses the impacts of these requirements on public entities, who are predominantly state and local government agencies. This discussion serves the purposes of a Federalism Assessment for purposes of this rule.

The Department also points out that Subpart F proposes to assign to state agencies a significant role in reviewing and commenting on paratransit plans for small transportation providers. This approach would allow states to continue in their traditional oversight role for these providers, avoiding unnecessary centralization of compliance planning and review at the Federal level, beyond what is required for compliance with the statute..

ISSUED THIS DAY OF AUGUST, 1991, AT WASHINGTON, D.C.

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

Samuel K. Skinner

Secretary of Transportation

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