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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 (se 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 wor | 
