[Code of Federal Regulations]
[Title 49, Volume 1]
[Revised as of October 1, 2005]
From the U.S. Government Printing Office via GPO Access [[Page 548]]
Appendix D to Part 37--Construction and Interpretation of Provisions of
49 CFR Part 37 This appendix explains the Department's construction and
interpretation of provisions of 49 CFR part 37. It is intended to be
used as definitive guidance concerning the meaning and implementation of
these provisions. The appendix is organized on a section-by-section
basis. Some sections of the rule are not discussed in the appendix,
because they are self-explanatory or we do not currently have
interpretive material to provide concerning them.
The Department also provides guidance by other means, such as
manuals and letters. The Department intends to update this Appendix
periodically to include guidance, provided in response to inquiries
about specific situations, that is of general relevance or interest.
Amendments to 49 CFR Part 27
Section 27.67(d) has been revised to reference the Access Board
facility guidelines (found in appendix A to part 37) as well as the
Uniform Federal Accessibility Standard (UFAS). This change was made to
ensure consistency between requirements under section 504 and the ADA.
Several caveats relating to the application of UFAS (e.g., that spaces
not used by the public or likely to result in the employment of
individuals with disabilities would not have to meet the standards) have
been deleted. It is the Department's understanding that provisions of
the Access Board standards and part 37 make them unnecessary.
The Department is aware that there is a transition period between
the publication of this rule and the effective date of many of its
provisions (e.g., concerning facilities and paratransit services) during
which section 504 remains the basic authority for accessibility
modifications. In this interval, the Department expects recipients'
compliance with section 504 to look forward to compliance with the ADA
provisions. That is, if a recipient is making a decision about the shape
of its paratransit service between the publication of this rule and
January 26, 1992, the decision should be in the direction of service
that will help to comply with post-January 1992 requirements. A
recipient that severely curtailed its present paratransit service in
October, and then asked for a three- or five-year phase-in of service
under its paratransit plan, would not be acting consistent with this
policy.
Likewise, the Department would view with disfavor any attempt by a
recipient to accelerate the beginning of the construction, installation
or alteration of a facility to before January 26, 1992, to ``beat the
clock'' and avoid the application of this rule's facility standards. The
Department would be very reluctant to approve grants, contracts,
exemption requests etc., that appear to have this effect. The purpose of
the Department's administration of section 504 is to ensure compliance
with the national policy stated in the ADA, not to permit avoidance of
it.
Subpart A--General
Section 37.3 Definitions
The definition of ``commuter authority'' includes a list of commuter
rail operators drawn from a statutory reference in the [[Page 549]] ADA. It should be noted that this list is not exhaustive. Other commuter
rail operators (e.g., in Chicago or San Francisco) would also be
encompassed by this definition.
The definition of ``commuter bus service'' is important because the
ADA does not require complementary paratransit to be provided with
respect to commuter bus service operated by public entities. The
rationale that may be inferred for the statutory exemption for this kind
of service concerns its typical characteristics (e.g., no attempt to
comprehensively cover a service area, limited route structure, limited
origins and destinations, interface with another mode of transportation,
limited purposes of travel). These characteristics can be found in some
transportation systems other than bus systems oriented toward work
trips. For example, bus service that is used as a dedicated connecter to
commuter or intercity rail service, certain airport shuttles, and
university bus systems share many or all of these characteristics. As
explained further in the discussion of subpart B, the Department has
determined that it is appropriate to cover these services with the
requirements applicable to commuter bus systems.
The definitions of ``designated public transportation'' and
``specified public transportation'' exclude transportation by aircraft.
Persons interested in matters concerning access to air travel for
individuals with disabilities should refer to 14 CFR part 382, the
Department's regulation implementing the Air Carrier Access Act. Since
the facility requirements of this part refer to facilities involved in
the provision of designated or specified public transportation, airport
facilities are not covered by this part. DOJ makes clear that public and
private airport facilities are covered under its title II and title III
regulations, respectively.
The examples given in the definition of ``facility'' all relate to
ground transportation. We would point out that, since transportation by
passenger vessels is covered by this rule and by DOJ rules, such vessel-
related facilities as docks, wharfs, vessel terminals, etc. fall under
this definition. It is intended that specific requirements for vessels
and related facilities will be set forth in future rulemaking.
The definitions of ``fixed route system'' and ``demand responsive
system'' derive directly from the ADA's definitions of these terms. Some
systems, like a typical city bus system or a dial-a-ride van system, fit
clearly into one category or the other. Other systems may not so clearly
fall into one of the categories. Nevertheless, because how a system is
categorized has consequences for the requirements it must meet, entities
must determine, on a case-by-case basis, into which category their
systems fall.
In making this determination, one of the key factors to be
considered is whether the individual, in order to use the service, must
request the service, typically by making a call.
With fixed route service, no action by the individual is needed to
initiate public transportation. If an individual is at a bus stop at the
time the bus is scheduled to appear, then that individual will be able
to access the transportation system. With demand-reponsive service, an
additional step must be taken by the individual before he or she can
ride the bus, i.e., the individual must make a telephone call.
(S. Rept. 101-116 at 54).
Other factors, such as the presence or absence of published
schedules, or the variation of vehicle intervals in anticipation of
differences in usage, are less important in making the distinction
between the two types of service. If a service is provided along a given
route, and a vehicle will arrive at certain times regardless of whether
a passenger actively requests the vehicle, the service in most cases
should be regarded as fixed route rather than demand responsive.
At the same time, the fact that there is an interaction between a
passenger and transportation service does not necessarily make the
service demand responsive. For many types of service (e.g., intercity
bus, intercity rail) which are clearly fixed route, a passenger has to
interact with an agent to buy a ticket. Some services (e.g., certain
commuter bus or commuter rail operations) may use flag stops, in which a
vehicle along the route does not stop unless a passenger flags the
vehicle down. A traveler staying at a hotel usually makes a room
reservation before hopping on the hotel shuttle. This kind of
interaction does not make an otherwise fixed route service demand
responsive.
On the other hand, we would regard a system that permits user-
initiated deviations from routes or schedules as demand-responsive. For
example, if a rural public transit system (e.g., a section 18 recipient)
has a few fixed routes, the fixed route portion of its system would be
subject to the requirements of subpart F for complementary paratransit
service. If the entity changed its system so that it operated as a
route-deviation system, we would regard it as a demand responsive
system. Such a system would not be subject to complementary paratransit
requirements.
The definition of ``individual with a disability'' excludes someone
who is currently engaging in the illegal use of drugs, when a covered
entity is acting on the basis of such use. This concept is more
important in employment and public accommodations contexts than it is in
transportation, and is discussed at greater length in the DOJ and EEOC
rules. Essentially, the definition says that, although drug addiction
(i.e., the status or a diagnosis of being a drug abuser) is [[Page 550]] a disability, no one is regarded as being an individual with a
disability on the basis of current illegal drug use.
Moreover, even if an individual has a disability, a covered entity
can take action against the individual if that individual is currently
engaging in illegal drug use. For example, if a person with a mobility
or vision impairment is ADA paratransit eligible, but is caught
possessing or using cocaine or marijuana on a paratransit vehicle, the
transit provider can deny the individual further eligibility. If the
individual has successfully undergone rehabilitation or is no longer
using drugs, as explained in the preamble to the DOJ rules, the transit
provider could not continue to deny eligibility on the basis that the
individual was a former drug user or still was diagnosed as a person
with a substance abuse problem.
We defined ``paratransit'' in order to note its specialized usage in
the rule. Part 37 uses this term to refer to the complementary
paratransit service comparable to public fixed route systems which must
be provided. Typically, paratransit is provided in a demand responsive
mode. Obviously, the rule refers to a wide variety of demand responsive
services that are not ``paratransit,'' in this specialized sense.
The ADA's definition of ``over-the-road bus'' may also be somewhat
narrower than the common understanding of the term. The ADA definition
focuses on a bus with an elevated passenger deck over a baggage
compartment (i.e., a ``Greyhound-type'' bus). Other types of buses
commonly referred to as ``over-the-road buses,'' which are sometimes
used for commuter bus or other service, do not come within this
definition. Only buses that do come within the definition are subject to
the over-the-road bus exception to accessibility requirements in Title
III of the ADA.
For terminological clarity, we want to point out that two different
words are used in ADA regulations to refer to devices on which
individuals with hearing impairments communicate over telephone lines.
DOJ uses the more traditional term ``telecommunications device for the
deaf'' (TDD). The Access Board uses a newer term, ``text telephone.''
The DOT rule uses the terms interchangably.
The definition of ``transit facility'' applies only with reference
to the TDD requirement of appendix A to this Part. The point of the
definition is to exempt from TDD requirements open structures, like bus
shelters, or facilities which are not used primarily as transportation
stops or terminals. For example, a drug store in a small town may sell
intercity bus tickets, and people waiting for the bus may even wait for
the bus inside the store. But the drug store's raison d'etre is not to
be a bus station. Its transportation function is only incidental.
Consequently, its obligations with respect to TDDs would be those
required of a place of public accommodation by DOJ rules.
A ``used vehicle'' means a vehicle which has prior use; prior, that
is, to its acquisition by its present owner or lessee. The definition is
not relevant to existing vehicles in one's own fleet, which were
obtained before the ADA vehicle accessibility requirements took effect.
A ``vanpool'' is a voluntary commuter ridesharing arrangement using
a van with a seating capacity of more than seven persons, including the
driver. Carpools are not included in the definition. There are some
systems using larger vehicles (e.g., buses) that operate, in effect, as
vanpools. This definition encompasses such systems. Vanpools are used
for daily work trips, between commuters' homes (or collection points
near them) and work sites (or drop points near them). Drivers are
themselves commuters who are either volunteers who receive no
compensation for their efforts or persons who are reimbursed by other
riders for the vehicle, operating, and driving costs.
The definition of ``wheelchair'' includes a wide variety of mobility
devices. This inclusiveness is consistent with the legislative history
of the ADA (See S. Rept. 101-116 at 48). While some mobility devices may
not look like many persons' traditional idea of a wheel chair, three and
four wheeled devices, of many varied designs, are used by individuals
with disabilities and must be transported. The definition of ``common
wheelchair,'' developed by the Access Board, is intended to help transit
providers determine which wheelchairs they have to carry. The definition
involves an ``envelope'' relating to the Access Board requirements for
vehicle lifts.
A lift conforming to Access Board requirements is
30"x48" and capable of lifting a wheelchair/occupant
combination of up to 600 pounds. Consequently, a common wheelchair is
one that fits these size and weight dimensions. Devices used by
individuals with disabilities that do not fit this envelope (e.g., may
``gurneys'') do not have to be carried.
Section 37.5 Nondiscrimination
This section states the general nondiscrimination obligation for
entities providing transportation service. It should be noted that
virtually all public and private entities covered by this regulation are
also covered by DOJ regulations, which have more detailed statements of
general nondiscrimination obligations.
Under the ADA, an entity may not consign an individual with
disabilities to a separate, ``segregated,'' service for such persons, if
the individual can in fact use the service for the general public. This
is true even if the individual takes longer, or has more difficulty, [[Page 551]] than other persons in using the service for the general public.
One instance in which this principal applies concerns the use of
designated priority seats (e.g., the so-called ``elderly and
handicapped'' seats near the entrances to buses). A person with a
disability (e.g., a visual impairment) may choose to take advantage of
this accommodation or not. If not, it is contrary to rule for the entity
to insist that the individual must sit in the priority seats.
The prohibition on special charges applies to charges for service to
individuals with disabilities that are higher than charges for the same
or comparable services to other persons. For example, if a shuttle
service charges $20.00 for a ride from a given location to the airport
for most people, it could not charge $40.00 because the passenger had a
disability or needed to use the shuttle service's lift-equipped van.
Higher mileage charges for using an accessible vehicle would likewise be
inconsistent with the rule. So would charging extra to carry a service
animal accompanying an individual with a disability.
If a taxi company charges $1.00 to stow luggage in the trunk, it
cannot charge $2.00 to stow a folding wheelchair there. This provision
does not mean, however, that a transportation provider cannot charge
nondiscriminatory fees to passengers with disabilities. The taxi company
in the above example can charge a passenger $1.00 to stow a wheelchair
in the trunk; it is not required to waive the charge. This section does
not prohibit the fares for paratransit service which transit providers
are allowed to charge under Sec. 37.131(d).
A requirement for an attendant is inconsistent with the general
nondiscrimination principle that prohibits policies that unnecessarily
impose requirements on individuals with disabilities that are not
imposed on others. Consequently, such requirements are prohibited. An
entity is not required to provide attendant services (e.g., assistance
in toileting, feeding, dressing), etc.
This provision must also be considered in light of the fact that an
entity may refuse service to someone who engages in violent, seriously
disruptive, or illegal conduct. If an entity may legitimately refuse
service to someone, it may condition service to him on actions that
would mitigate the problem. The entity could require an attendant as a
condition of providing service it otherwise had the right to refuse.
The rule also points out that involuntary conduct related to a
disability that may offend or annoy other persons, but which does not
pose a direct treat, is not a basis for refusal of transportation. For
example, some persons with Tourette's syndrome may make involuntary
profane exclamations. These may be very annoying or offensive to others,
but would not be a ground for denial of service. Nor would it be
consistent with the nondiscrimination requirements of this part to deny
service based on fear or misinformation about the disability. For
example, a transit provider could not deny service to a person with HIV
disease because its personnel or other passengers are afraid of being
near people with that condition.
This section also prohibits denials of service or the placing on
services of conditions inconsistent with this part on individuals with
disabilities because of insurance company policies or requirements. If
an insurance company told a transit provider that it would withdraw
coverage, or raise rates, unless a transit provider refused to carry
persons with disabilities, or unless the provider refused to carry
three-wheeled scooters, this would not excuse the provider from
providing the service as mandate by this part. This is not a regulatory
requirement on insurance companies, but simply says that covered
entities must comply with this part, even in the face of difficulties
with their insurance companies.
Section 37.7 Standards for Accessible Vehicles
This section makes clear that, in order to meet accessibility
requirements of this rule, vehicles must comply with Access Board
standards, incorporated in DOT rules as 49 CFR part 38. Paragraph (b) of
Sec. 37.7 spells out a procedure by which an entity (public or private)
can deviate from provisions of part 38 with respect to vehicles. The
entity can make a case to the Administrator that it is unable to comply
with a particular portion of part 38, as written, for specified reasons,
and that it is providing comparable compliance by some alternative
method. The entity would have to describe how its alternative mode of
compliance would meet or exceed the level of access to or usability of
the vehicle that compliance with part 38 would otherwise provide.
It should be noted that equivalent facilitation does not provide a
means to get a waiver of accessibility requirements. Rather, it is a way
in which comparable (not a lesser degree of) accessibility can be
provided by other means. The entity must consult with the public through
some means of public participation in devising its alternative form of
compliance, and the public input must be reflected in the submission to
the Administrator (or the Federal Railroad Administrator in appropriate
cases, such as a request concerning Amtrak). The Administrator will make
a case-by-case decision about whether compliance with part 38 was
achievable and, if not, whether the proffered alternative complies with
the equivalent facilitation standard. DOT intends to consult with the
Access Board in making these determinations.
This equivalent facilitation provision can apply to buses or other
motor vehicles as [[Page 552]] well as to rail cars and vehicles. An example of what could be an
equivalent facilitation would concern rail cars which would leave too
wide a horizontal gap between the door and the platform. If the operator
used a combination of bridgeplates and personnel to bridge the gap, it
might be regarded as an equivalent facilitation in appropriate
circumstances.
Section 37.7(c) clarifies which specifications must be complied with
for over-the-road buses purchased by public entities (under subpart D of
part 37) or private entities standing in the shoes of the public entity
(as described in Sec. 37.23 of part 37). This section is necessary to
make clear that over-the-road coaches must be accessible, when they are
purchased by or in furtherance of a contract with a public entity. While
the October 4, 1990 rule specified that over-the-road coaches must be
accessible under these circumstances, we had not previously specified
what constitutes accessibility.
Accordingly, this paragraph specifies that an over-the-road bus must
have a lift which meets the performance requirements of a regular bus
lift (see Sec. 38.23) and must meet the interim accessibility features
specified for all over-the-road buses in part 3, subpart G.
Section 37.9 Standards for Transportation Facilities
This section makes clear that, in order to meet accessibility
requirements of this rule, vehicles must comply with appendix A to part
37, which incorporates the Access Board facility guidelines.
Paragraph (b) of Sec. 37.9 provides that, under certain
circumstances, existing accessibility modifications to key station
facilities do not need to be modified further in order to conform to
appendix A. This is true even if the standards under which the facility
was modified differ from the Access Board guidelines or provide a lesser
standard of accessibility.
To qualify for this ``grandfathering,'' alterations must have been
before January 26, 1992. As in other facility sections of the rule, an
alteration is deemed to begin with the issuance of a notice to proceed
or work order. The existing modifications must conform to ANSI A-117.1,
Specifications for Making Buildings and Facilities Accessible to and
Usable by the Physically Handicapped 1980, or the Uniform Federal
Accessibility Standard. (UFAS).
For example, if an entity used a Federal grant or loan or money to
make changes to a building, it would already have had to comply with the
Uniform Federal Accessibility Standards. Likewise, if a private entity,
acting without any Federal money in the project, may have complied with
the ANSI A117.1 standard. So long as the work was done in conformity
with the standard that was in effect when the work was done, the
alteration will be considered accessible.
However, because one modification was made to a facility under one
of these standards, the entity still has a responsibility to make other
modifications needed to comply with applicable accessibility
requirements. For example, if an entity has made some modifications to a
key station according to one of these older standards, but the
modifications do not make the key station entirely accessible as this
rule requires, then additional modifications would have to be made
according to the standards of appendix A. Suppose this entity has put an
elevator into the station to make it accessible to individuals who use
wheelchairs. If the elevator does not fully meet appendix A standards,
but met the applicable ANSI standard when it was installed, it would not
need further modifications now. But if it had not already done so, the
entity would have to install a tactile strip along the platform edge in
order to make the key station fully accessible as provided in this rule.
The tactile strip would have to meet appendix A requirements.
The rule specifically provides that ``grandfathering'' applies only
to alterations of individual elements and spaces and only to the extent
that provisions covering those elements or spaces are found in UFAS or
AHSI A117.1. For example, alterations to the telephones in a key station
may have been carried out in order to lower them to meet the
requirements of UFAS, but telecommunications devices for the deaf (TDDs)
were not installed. (Neither UFAS nor the ANSI standard include
requirements concerning TDDs). However, because appendix A does contain
TDD requirements, the key station must now be altered in accordance with
the standards for TDDs. Similarly, earlier alteration of an entire
station in accordance with UFAS or the ANSI standard would not relieve
an entity from compliance with any applicable provision concerning the
gap between the platform between the platform and the vehicle in a key
station, because neither of these two standards addresses the interface
between vehicle and platform.
New paragraph (c) of this section clarifies a provision of the
Access Board's standards concerning the construction of bus stop pads at
bus stops. The final Access Board standard (found at section 10.2.1(1)
of appendix A to part 37) has been rewritten slightly to clear up
confusion about the perceived necessary construction of a bus stop pad.
Section 10.2.1(1) does not require that anyone build a bus stop pad; it
does specify what a bus stop pad must look like, if it is constructed.
The further clarifying language in Sec. 37.9(c) explains that public
entities must exert control over the construction of bus stop pads if
they have the ability to do so. The Access Board, as well as DOT,
recognize [[Page 553]] that most physical improvements related to bus stops are out of the
control of the transit provider. Paragraph (c) of Sec. 37.9 merely
notes that where a transit provider does have control over the
construction, it must exercise that control to ensure that the pad meets
these specifications.
One further clarification concerning the implication of this
provision deals with a bus loading island at which buses pull up on both
sides of the island. It would be possible to read the bus pad
specification to require the island to be a minimum of 84 inches wide
(two widths of a bus stop pad), so that a lift could be deployed from
buses on both sides of the island at the same time. A double-wide bus
pad, however, is likely to exceed available space in most instances.
Where there is space, of course, building a double-wide pad is one
acceptable option under this rule. However, the combination of a pad of
normal width and standard operational practices may also suffice. (Such
practices could be offered as an equivalent facilitation.) For example,
buses on either side of the island could stop at staggered locations
(i.e., the bus on the left side could stop several feet ahead of the bus
on the right side), so that even when buses were on both sides of the
island at once, their lifts could be deployed without conflict. Where it
is possible, building the pad a little longer than normal size could
facilitate such an approach. In a situation where staggered stop areas
are not feasible, an operational practice of having one bus wait until
the other's lift cycle had been completed could do the job. Finally, the
specification does not require that a pad be built at all. If there is
nothing that can be done to permit lift deployment on both sides of an
island, the buses can stop on the street, or some other location, so
long as the lift is deployable.
Like Sec. 37.7, this section contains a provision allowing an
entity to request approval for providing accessibility through an
equivalent facilitation.
Section 37.11 Administrative Enforcement
This section spells out administrative means of enforcing the
requirements of the ADA. Recipients of Federal financial assistance from
DOT (whether public or private entities) are subject to DOT's section
504 enforcement procedures. The existing procedures, including
administrative complaints to the DOT Office of Civil Rights,
investigation, attempts at conciliation, and final resort to proceedings
to cut off funds to a noncomplying recipient, will continue to be used.
In considering enforcement matters, the Department is guided by a
policy that emphasizes compliance. The aim of enforcement action, as we
see it, is to make sure that entities meet their obligations, not to
impose sanctions for their own sake. The Department's enforcement
priority is on failures to comply with basic requirements and ``pattern
or practice'' kinds of problems, rather than on isolated operational
errors.
Under the DOJ rules implementing title II of the ADA (28 CFR part
35), DOT is a ``designated agency'' for enforcement of complaints
relating to transportation programs of public entities, even if they do
not receive Federal financial assistance. When it receives such a
complaint, the Department will investigate the complaint, attempt
conciliation and, if conciliation is not possible, take action under
section 504 and/or refer the matter to the DOJ for possible further
action.
Title III of the ADA does not give DOT any administrative
enforcement authority with respect to private entities whose
transportation services are subject to part 37. In its title III rule
(28 CFR part 36), DOJ assumes enforcement responsibility for all title
III matters. If the Department of Transportation receives complaints of
violations of part 37 by private entities, it will refer the matters to
the DOJ.
It should be pointed out that the ADA includes other enforcement
options. Individuals have a private right of action against entities who
violate the ADA and its implementing regulations. The DOJ can take
violators to court. These approaches are not mutually exclusive with the
administrative enforcement mechanisms described in this section. An
aggrieved individual can complain to DOT about an alleged transportation
violation and go to court at the same time. Use of administrative
enforcement procedures is not, under titles II and III, an
administrative remedy that individuals must exhaust before taking legal
action.
We also would point out that the ADA does not assert any blanket
preemptive authority over state or local nondiscrimination laws and
enforcement mechanisms. While requirements of the ADA and this
regulation would preempt conflicting state or local provisions (e.g., a
building code or zoning ordinance that prevents compliance with appendix
A or other facility accessibility requirements, a provision of local law
that said bus drivers could not leave their seats to help secure
wheelchair users), the ADA and this rule do not prohibit states and
localities from legislating in areas relating to disability. For
example, if a state law requires a higher degree of service than the
ADA, that requirement could still be enforced. Also, states and
localities may continue to enforce their own parallel requirements. For
example, it would be a violation of this rule for a taxi driver to
refuse to pick up a person based on that person's disability. Such a
refusal may also be a violation of a county's taxi rules, subjecting the
violator to a fine or suspension of operating privileges. Both ADA and
local remedies could proceed in such a case. [[Page 554]] Labor-management agreements cannot stand in conflict with the
requirements of the ADA and this rule. For example, if a labor-
management agreement provides that vehicle drivers are not required to
provide assistance to persons with disabilities in a situation in which
this rule requires such assistance, then the assistance must be provided
notwithstanding the agreement. Labor and management do not have the
authority to agree to violate requirements of Federal law.
Section 37.13 Effective Date for Certain Vehicle Lift Specifications.
This section contains an explicit statement of the effective date
for vehicle lift platform specifications. The Department has decided to
apply the new part 38 lift platform specifications to solicitations
after January 25, 1992. As in the October 4, 1990, rule implementing the
acquisition requirements; the date of a solicitation is deemed to be the
closing date for the submission of bids or offers in a procurement.
Subpart B--Applicability
Section 37.21 Applicability--General
This section emphasizes the broad applicability of part 37. Unlike
section 504, the ADA and its implementing rules apply to entities
whether or not they receive Federal financial assistance. They apply to
private and public entities alike. For entities which do receive Federal
funds, compliance with the ADA and part 37 is a condition of compliance
with section 504 and 49 CFR part 27, DOT's section 504 rule.
Virtually all entities covered by this rule also are covered by DOJ
rules, either under 28 CFR part 36 as state and local program providers
or under 28 CFR part 35 as operators of places of public accommodation.
Both sets of rules apply; one does not override the other. The DOT rules
apply only to the entity's transportation facilities, vehicles, or
services; the DOJ rules may cover the entity's activities more broadly.
For example, if a public entity operates a transit system and a zoo,
DOT's coverage would stop at the transit system's edge, while DOJ's rule
would cover the zoo as well.
DOT and DOJ have coordinated their rules, and the rules have been
drafted to be consistent with one another. Should, in the context of
some future situation, there be an apparent inconsistency between the
two rules, the DOT rule would control within the sphere of
transportation services, facilities and vehicles.
Section 37.23 Service Under Contract
This section requires private entities to ``stand in the shoes'' of
public entities with whom they contract to provide transportation
services. It ensures that, while a public entity may contract out its
service, it may not contract away its ADA responsibilities. The
requirement applies primarily to vehicle acquisition requirements and to
service provision requirements.
If a public entity wishes to acquire vehicles for use on a commuter
route, for example, it must acquire accessible vehicles. It may acquire
accessible over-the-road buses, it may acquire accessible full-size
transit buses, it may acquire accessible smaller buses, or it may
acquire accessible vans. It does not matter what kind of vehicles it
acquires, so long as they are accessible. On the other hand, if the
public entity wants to use inaccessible buses in its existing fleet for
the commuter service, it may do so. All replacement vehicles acquired in
the future must, of course, be accessible.
Under this provision, a private entity which contracts to provide
this commuter service stands in the shoes of the public entity and is
subject to precisely the same requirements (it is not required to do
more than the public entity). If the private entity acquires vehicles
used to provide the service, the vehicles must be accessible. If it
cannot, or chooses not to, acquire an accessible vehicle of one type, it
can acquire an accessible vehicle of another type. Like the public
entity, it can provide the service with inaccessible vehicles in its
existing fleet.
The import of the provision is that it requires a private entity
contracting to provide transportation service to a public entity to
follow the rules applicable to the public entity. For the time being, a
private entity operating in its own right can purchase a new over-the-
road bus inaccessible to individuals who use wheelchairs. When that
private entity operates service under contract to the public entity,
however, it is just as obligated as the public entity itself to purchase
an accessible bus for use in that service, whether or not it is an over-
the-road bus.
The ``stand in the shoes'' requirement applies not only to vehicles
acquired by private entities explicitly under terms of an executed
contract to provide service to a public entity, but also to vehicles
acquired ``in contemplation of use'' for service under such a contract.
This language is included to ensure good faith compliance with
accessibility requirements for vehicles acquired before the execution of
a contract. Whether a particular acquisition is in contemplation of use
on a contract will be determined on a case-by-case basis. However,
acquiring a vehicle a short time before a contract is executed and then
using it for the contracted service is an indication that the vehicle
was acquired in contemplation of use on the contract, as is acquiring a
vehicle obstensibly for other service provided by the entity and then
regularly rotating it into service under the contract. [[Page 555]] The ``stand in the shoes'' requirement is applicable only to the
vehicles and service (public entity service requirements, like Sec.
37.163, apply to a private entity in these situations) provided under
contract to a public entity. Public entity requirements clearly do not
apply to all phases of a private entity's operations, just because it
has a contract with a public entity. For example, a private bus company,
if purchasing buses for service under contract to a public entity, must
purchase accessible buses. The same company, to the extent permitted by
the private entity provisions of this part, may purchase inaccessible
vehicles for its tour bus operations.
The Department also notes that the ``stands in the shoes''
requirement may differ depending on the kind of service involved. The
public entity's ``shoes'' are shaped differently, for example, depending
on whether the public entity is providing fixed route or demand
responsive service to the general public. In the case of demand
responsive service, a public entity is not required to buy an accessible
vehicle if its demand responsive system, when viewed in its entirety,
provides service to individuals with disabilities equivalent to its
service to other persons. A private contractor providing a portion of
this paratransit service would not necessarily have to acquire an
accessible vehicle if this equivalency test is being met by the system
as a whole. Similarly, a public entity can, after going through a ``good
faith efforts'' search, acquire inaccessible buses. A private entity
under contract to the public can do the same. ``Stand in the shoes'' may
also mean that, under some circumstances, a private contractor need not
acquire accessible vehicles. If a private company contracts with a
public school district to provide school bus service, it is covered, for
that purpose, by the exemption for public school transportation.
In addition, the requirement that a private entity play by the rules
applicable to a public entity can apply in situations involving an
``arrangement or other relationship'' with a public entity other than
the traditional contract for service. For example, a private utility
company that operates what is, in essence, a regular fixed route public
transportation system for a city, and which receives section 3 or 9
funds from FTA via an agreement with a state or local government agency,
would fall under the provisions of this section. The provider would have
to comply with the vehicle acquisition, paratransit, and service
requirements that would apply to the public entity through which it
receives the FTA funds, if that public entity operated the system
itself. The Department would not, however, construe this section to
apply to situations in which the degree of FTA funding and state and
local agency involvement is considerably less, or in which the system of
transportation involved is not a de facto surrogate for a traditional
public entity fixed route transit system serving a city (e.g., a private
non-profit social service agency which receives FTA section 16(b)(2)
funds to purchase a vehicle).
This section also requires that a public entity not diminish the
percentage of accessible vehicles in its fleet through contracting. For
example, suppose a public entity has 100 buses in its fleet, of which 20
are accessible, meaning that 20 percent of its fleet is accessible. The
entity decides to add a fixed route, for which a contractor is engaged.
The contractor is supplying ten of its existing inaccessible buses for
the fixed route. To maintain the 20 percent accessibility ratio, there
would have to be 22 accessible buses out of the 110 buses now in
operation in carrying out the public entity's service. The public entity
could maintain its 20 percent level of accessibility through any one or
more of a number of means, such as having the contractor to provide two
accessible buses, retrofitting two if its own existing buses, or
accelerating replacement of two of its own inaccessible buses with
accessible buses.
This rule applies the ``stand in the shoes'' principle to
transactions wholly among private entities as well. For example, suppose
a taxi company (a private entity primarily engaged in the business of
transporting people) contracts with a hotel to provide airport shuttle
van service. With respect to that service, the taxi company would be
subject to the requirements for private entities not primarily in the
business of transporting people, since it would be ``standing in the
shoes'' of the hotel for that purpose.
Section 37.25 University Transportation Systems
Private university-operated transportation systems are subject to
the requirements of this rule for private entities not primarily engaged
in the business of transporting people. With one important exception,
public university-operated transportation systems are subject to the
requirements of the rule for public entities. The nature of the systems
involved--demand-responsive or fixed route--determines the precise
requirements involved.
For public university fixed route systems, public entity
requirements apply. In the case of fixed route systems, the requirements
for commuter bus service would govern. This has the effect of requiring
the acquisition of accessible vehicles and compliance with most other
provisions of the rule, but does not require the provision of
complementary paratransit or submitting a paratransit plan. As a result,
private and public universities will have very similar obligations under
the rule. [[Page 556]]
Section 37.27 Transportation for Elementary and Secondary Education
Systems
This section restates the statutory exemption from public entity
requirements given to public school transportation. This extension also
applies to transportation of pre-school children to Head Start or
special education programs which receive Federal assistance. It also
applies to arrangements permitting pre-school children of school bus
drivers to ride a school bus or allowing teenage mothers to be
transported to day care facilities at a school or along a school bus
route so that their mothers may continue to attend school (See H. Rept.
101-485, pt. 1 at 27). The situation for private schools is more
complex. According to the provision, a private elementary or secondary
school's transportation system is exempt from coverage under this rule
if all three of the following conditions are met: (1) The school
receives Federal financial assistance; (2) the school is subject to
section 504; and (3) the school's transportation system provides
transportation services to individuals with disabilities, including
wheelchair users, equivalent to those provided to individuals without
disabilities. The test of equivalency is the same as that for other
private entities, and is described under Sec. 37.105. If the school
does not meet all these criteria, then it is subject to the requirements
of Part 37 for private entities not primarily engaged in the business of
transporting people.
The Department notes that, given the constitutional law on church-
state separation, it is likely that church-affiliated private schools do
not receive Federal financial assistance. To the extent that these
schools' transportation systems are operated by religious entities or
entities controlled by religious organizations, they are not subject to
the ADA at all, so this section does not apply to them.
Section 37.29 Private Providers of Taxi Service
This section first recites that providers of taxi service are
private entities primarily engaged in the business of transporting
people which provide demand responsive service. For purposes of this
section, other transportation services that involve calling for a car
and a driver to take one places (e.g., limousine services, of the kind
that provide luxury cars and chauffeurs for senior proms and analogous
adult events) are regarded as taxi services.
Under the ADA, no private entity is required to purchase an
accessible automobile. If a taxi company purchases a larger vehicle,
like a van, it is subject to the same rules as any other private entity
primarily engaged in the business of transporting people which operates
a demand responsive service. That is, unless it is already providing
equivalent service, any van it acquires must be accessible. Equivalent
service is measured according to the criteria of Sec. 37.105. Taxi
companies are not required to acquire vehicles other than automobiles to
add accessible vehicles to their fleets.
Taxi companies are subject to nondiscrimination obligations. These
obligations mean, first, that a taxi service may not deny a ride to an
individual with a disability who is capable of using the taxi vehicles.
It would be discrimination to pass up a passenger because he or she was
blind or used a wheelchair, if the wheelchair was one that could be
stowed in the cab and the passenger could transfer to a vehicle seat.
Nor could a taxi company insist that a wheelchair user wait for a lift-
equipped van if the person could use an automobile.
It would be discrimination for a driver to refuse to assist with
stowing a wheelchair in the trunk (since taxi drivers routinely assist
passengers with stowing luggage). It would be discrimination to charge a
higher fee or fare for carrying a person with a disability than for
carrying a non-disabled passenger, or a higher fee for stowing a
wheelchair than for stowing a suitcase. (Charging the same fee for
stowing a wheelchair as for stowing a suitcase would be proper,
however.) The fact that it may take somewhat more time and effort to
serve a person with a disability than another passenger does not justify
discriminatory conduct with respect to passengers with disabilities.
State or local governments may run user-side subsidy arrangements
for the general public (e.g., taxi voucher systems for senior citizens
or low-income persons). Under the DOJ title II rule, these programs
would have to meet ``program accessibility'' requirements, which
probably would require that accessible transportation be made available
to senior citizens or low-income persons with disabilities. This would
not directly require private taxi providers who accept the vouchers to
purchase accessible vehicles beyond the requirements of this rule,
however.
Section 37.31 Vanpools
This provision applies to public vanpool systems the requirements
for public entities operating demand responsive systems for the general
public. A public vanpool system is one operated by a public entity, or
in which a public entity owns or purchases or leases the vehicles.
Lesser degrees of public involvement with an otherwise private
ridesharing arrangement (e.g., provision of parking spaces, HOV lanes,
coordination or clearinghouse services) do not convert a private into a
public system.
The requirement for a public vanpool system is that it purchase or
lease an accessible vehicle unless it can demonstrate that it provides
equivalent service to individuals with disabilities, including
individuals who use wheelchairs, as it provides to individuals [[Page 557]] without disabilities. For a public vanpool system, the equivalency
requirement would be met if an accessible vehicle is made available to
and used by a vanpool when an individual with a disability needs such a
vehicle to participate. Public vanpool systems may meet this requirement
through obtaining a percentage of accessible vehicles that is reasonable
in light of demand for them by participants, but this is not required,
so long as the entity can respond promptly to requests for participation
in a vanpool with the provision of an accessible van when needed.
There is no requirement for private vanpools, defined as a voluntary
arrangement in which the driver is compensated only for expenses.
Section 37.33 Airport Transportation Systems
Fixed route transportation systems operated by public airports are
regarded by this section as fixed route commuter bus systems. As such,
shuttles among terminals and parking lots, connector systems among the
airport and a limited number of other local destinations must acquire
accessible buses, but are not subject to complementary paratransit
requirements. (If a public airport operates a demand responsive system
for the general public, it would be subject to the rules for demand
responsive systems for the general public.)
It should be noted that this section applies only to transportation
services that are operated by public airports themselves (or by private
contractors who stand in their shoes). When a regular urban mass transit
system serves the airport, the airport is simply one portion of its
service area, treated for purposes of this rule like the rest of its
service area.
Virtually all airports are served by taxi companies, who are subject
to Sec. 37.29 at airports as elsewhere. In addition, many airports are
served by jitney or shuttle systems. Typically, these systems operate in
a route-deviation or similar variable mode in which there are passenger-
initiated decisions concerning destinations. We view such systems as
demand responsive transportation operated by private entities primarily
engaged in the business of transporting people.
Since many of these operators are small businesses, it may be
difficult for them to meet equivalency requirements on their own without
eventually having all or nearly all accessible vehicles, which could
pose economic problems. One suggested solution to this problem is for
the operators serving a given airport to form a pool or consortium
arrangement, in which a number of shared accessible vehicles would meet
the transportations of individuals with disabilities. As in other forms
of transportation, such an arrangement would have to provide service in
a nondiscriminatory way (e.g., in an integrated setting, no higher fares
for accessible service).
Section 37.35 Supplemental Service for Other Transportation Modes
This section applies to a number of situations in which an operator
of another transportation mode uses bus or other service to connect its
service with limited other points.
One instance is when an intercity railroad route is set up such that
the train stops outside the major urban center which is the actual
destination for many passengers. Examples mentioned to us include bus
service run by Amtrak from a stop in Columbus, Wisconsin, to downtown
Madison, or from San Jose to San Francisco. Such service is fixed route,
from the train station to a few points in the metropolitan area, with a
schedule keyed to the train schedule. It would be regarded as commuter
bus service, meaning that accessible vehicles would have to be acquired
but complementary paratransit was not required.
Another instance is one in which a commuter rail operator uses fixed
route bus service as a dedicated connection to, or extension of, its
rail service. The service may go to park and ride lots or other
destinations beyond the vicinity of the rail line. Again, this service
shares the characteristics of commuter bus service that might be used
even if the rail line were not present, and does not attempt to be a
comprehensive mass transit bus service for the area.
Of course, there may be instances in which a rail operator uses
demand responsive instead of fixed route service for a purpose of this
kind. In that case, the demand responsive system requirements of the
rule would apply.
Private entities (i.e., those operating places of public
accommodation) may operate similar systems, as when a cruise ship
operator provides a shuttle or connector between an airport and the
dock. This service is covered by the rules governing private entities
not primarily engaged in the business of transporting people. Fixed
route or demand responsive rules apply, depending on the characteristics
of the system involved.
One situation not explicitly covered in this section concerns ad hoc
transportation arranged, for instance, by a rail operator when the train
does not wind up at its intended destination. For example, an Amtrak
train bound for Philadelphia may be halted at Wilmington by a track
blockage between the two cities. Usually, the carrier responds by
providing bus service to the scheduled destination or to the next point
where rail service can resume.
The service that the carrier provides in this situation is
essentially a continuation by other means of its primary service. We
view the obligation of the rail operator as [[Page 558]] being to ensure that all passengers, including individuals with
disabilities, are provided service to the destination in a
nondiscriminatory manner. This includes, for instance, providing service
in the most integrated setting appropriate to the needs of the
individual and service that gets a passenger with a disability to the
destination as soon as other passengers.
Section 37.37 Other Applications
The ADA specifically defines ``public entity.'' Anything else is a
``private entity.'' The statute does not include in this definition a
private entity that receives a subsidy or franchise from a state or
local government or is regulated by a public entity. Only through the
definition of ``operates'' (see discussion of Sec. 37.23) do private
entities' relationships to public entities subject private entities to
the requirements for public entities. Consequently, in deciding which
provisions of the rule to apply to an entity in other than situations
covered by Sec. 37.23, the nature of the entity--public or private--is
determinative.
Transportation service provided by public accommodations is viewed
as being provided by private entities not primarily engaged in the
business of transporting people. Either the provisions of this part
applicable to demand responsive or fixed route systems apply, depending
on the nature of a specific system at a specific location. The
distinction between fixed route and demand responsive systems is
discussed in connection with the definitions section above. It is the
responsibility of each private entity, in the first instance, to assess
the nature of each transportation system on a case-by-case basis and
determine the applicable rules.
On the other hand, conveyances used for recreational purposes, such
as amusement park rides, ski lifts, or historic rail cars or trolleys
operated in museum settings, are not viewed as transportation under this
rule at all. Other conveyances may fit into this category as well.
The criterion for determining what requirements apply is whether the
conveyances are primarily an aspect of the recreational experience
itself or a means of getting from Point A to Point B. At a theme park,
for instance, a large roller coaster (though a ``train'' of cars on a
track) is a public accommodation not subject to this rule; the tram that
transports the paying customers around the park, with a stop at the
roller coaster, is a transportation system subject to the ``private, not
primarily'' provisions of this part.
Employer-provided transportation for employees is not covered by
this part, but by EEOC rules under title I of the ADA. (Public entities
are also subject to DOJ's title II rules with respect to employment.)
This exclusion from part 37 applies to transportation services provided
by an employer (whether access to motor pool vehicles, parking shuttles,
employer-sponsored van pools) that is made available solely to its own
employees. If an employer provides service to its own employees and
other persons, such as workers of other employers or customers, it would
be subject to the requirements of this part from private entities not
primarily engaged in the business of transporting people or public
entities, as applicable.
The rule looks to the private entity actually providing the
transportation service in question in determining whether the ``private,
primarily'' or ``private, not primarily'' rules apply. For example,
Conglomerate, Inc., owns a variety of agribusiness, petrochemical,
weapons system production, and fast food corporations. One of its many
subsidiaries, Green Tours, Inc., provides charter bus service for people
who want to view national parks, old-growth forests, and other
environmentally significant places. It is probably impossible to say in
what business Conglomerate, Inc. is primarily engaged, but it clearly is
not transporting people. Green Tours, Inc., on the other hand, is
clearly primarily engaged in the business of transporting people, and
the rule treats it as such.
On the other hand, when operating a transportation service off to
the side of to the main business of a public accommodation (e.g., a
hotel shuttle), the entity as a whole would be considered. Even if some
dedicated employees are used to provide the service, shuttles and other
systems provided as a means of getting to, from, or around a public
accommodation remain solidly in the ``private, not primarily'' category.
Subpart C--Transportation Facilities
Section 37.41 Construction of Transportation Facilities by Public
Entities
Section 37.41 contains the general requirement that all new
facilities constructed after January 25, 1992, be accessible to and
usable by individuals with disabilities. This provision tracks the
statute closely, and is analogous to a provision in the DOJ regulations
for private entities. Section 226 of the ADA provides little discretion
in this requirement.
The requirement is keyed to construction which ``begins'' after
January 25, 1992. The regulation defines ``begin'' to mean when a notice
to proceed order has been issued. This term has a standard meaning in
the construction industry, as an instruction to the contractor to
proceed with the work.
Questions have been raised concerning which standards apply before
January 26, 1992. There are Federal requirements that apply to all
recipients of federal money, depending on the circumstances. [[Page 559]] First, if an entity is a Federal recipient and uses Federal dollars
to construct the facility, regulations implementing section 504 of the
Rehabilitation Act of 1973 (29 U.S.C. 794), require the recipient to
comply with the Uniform Federal Accessibility Standards.
Second, since the Civil Rights Restoration Act of 1987 (Pub. L. 100-
259), an operation of a recipient of federal funds would also have to
comply with section 504, even though the activity was not paid for with
Federal funds. Thus, the Uniform Federal Accessibility Standards would
apply to this construction as well.
As mentioned above, the Department intends, in the period before
January 26, 1991, to view compliance with section 504 in light of
compliance with ADA requirements (this point applies to alterations as
well as new construction). Consequently, in reviewing requests for
grants, contract approvals, exemptions, etc., (whether with respect to
ongoing projects or new, experimental, or one-time efforts), the
Department will, as a policy matter, seek to ensure compliance with ADA
standards.
Section 37.43 Alteration of Transportation Facilities by Public Entities
This section sets out the accessibility requirements that apply when
a public entity undertakes an alteration of an existing facility. In
general, the section requires that any alteration, to the maximum extent
feasible, results in the altered area being accessible to and usable by
individuals with disabilities, including persons who use wheelchairs.
The provisions follow closely those adopted by the DOJ, in its
regulations implementing title III of the ADA.
The section requires specific activities whenever an alteration of
an existing facility is undertaken.
First, if the alteration is made to a primary function area, (or
access to an area containing a primary function), the entity shall make
the alteration in such a way as to ensure that the path of travel to the
altered area and the restrooms, telephones and drinking fountains
servicing the altered area are readily accessible to and usable by
individuals with disabilities, including individuals who use
wheelchairs.
Second, alterations to drinking fountains, telephones, and restrooms
do not have to be completed if the cost and scope of making them
accessible is disproportionate.
Third, the requirement goes into effect for alterations begun after
January 25, 1992.
Fourth, the term ``maximum extent feasible'' means that all changes
that are possible must be made. The requirement to make changes to the
maximum extent feasible derives from clear legislative history. The
Senate Report states--
The phrase ``to the maximum extent feasible'' has been included to
allow for the occasional case in which the nature of an existing
facility is such as to make it virtually impossible to renovate the
building in a manner that results in its being entirely accessible to
and usable by individuals with disabilities. In all such cases, however,
the alteration should provide the maximum amount of physical
accessibility feasible.
Thus, for example the term ``to the maximum extent feasible'' should
be construed as not requiring entities to make building alterations that
have little likelihood of being accomplished without removing or
altering a load-bearing structural member unless the load-bearing
structural member is otherwise being removed or altered as part of the
alteration. (S. Rept. 101-116, at 68).
Fifth, primary function means a major activity for which the
facility is intended. Primary function areas include waiting areas,
ticket purchase and collection areas, train or bus platforms, baggage
checking and return areas, and employment areas (with some exceptions
stated in the rule, for areas used by service personnel that are very
difficult to access).
Sixth, ``path of travel'' means a continuous, unobstructed way of
pedestrian passage by means of which the altered area may be approached,
entered, and exited, and which connects the altered area with an
exterior approach and includes restrooms, telephones, and drinking
fountains serving the altered area. If changes to the path of travel are
disproportionate, then only those changes which are not disproportionate
are to be completed.
Seven, the final rule specifies that costs exceeding 20 percent
would be disproportionate. This is consistent with the DOJ. In
determining costs, the Department intends costs to be based on changes
to the passenger service area that is scheduled for alteration.
Finally, the Department has defined the term ``begin'', in the
context of begin an alteration that is subject to the alteration
provision to mean when a notice to proceed or work order is issued. Two
terms are used (instead of only notice to proceed in the context of new
construction) because many alterations may be carried out by the entity
itself, in which case the only triggering event would be a work order or
similar authorization to begin.
In looking at facility concepts like ``disproportionality'' and ``to
the maximum extent feasible,'' the Department will consider any expenses
related to accessibility for passengers. It is not relevant to consider
non-passenger related improvements (e.g., installing a new track bed) or
to permit ``gold-plating'' (attributing to accessibility costs the
expense of non-related improvements, such as charging to accessibility
costs the price of a whole new door, when only adding a new handle to
the old door was needed for accessibility). [[Page 560]]
Section 37.47 Key Stations in Light and Rapid Rail Systems
Section 37.49 Designation of Responsible Person(s) for Intercity and
Commuter Rail Stations
This section sets forth a mechanism for determining who bears the
legal and financial responsibility for accessibility modifications to a
commuter and/or intercity rail station. The final provision of the
section is the most important. It authorizes all concerned parties to
come to their own agreement concerning the allocation of responsibility.
Such an agreement can allocate responsibility in any way acceptable to
the parties. The Department strongly encourages parties to come to such
an agreement.
In the absence of such an agreement, a statutory/regulatory scheme
allocates responsibility. In the first, and simplest, situation posed by
the statute, a single public entity owns more than 50 percent of the
station. In this case, the public entity is the responsible person and
nobody else is required to bear any of the responsibility.
In the second situation, a private entity owns more than 50 percent
of the station. The private entity need not bear any of the
responsibility for making the station accessible. A public entity owner
of the station, who does not operate passenger railroad service through
the station, is not required to bear any of the responsibility for
making the station accessible. The total responsibility is divided
between passenger railroads operating service through the station, on
the basis of respective passenger boardings. If there is only one
railroad operating service through the station, it bears the total
responsibility.
The Department believes that reference to passenger boardings is the
most equitable way of dividing responsibility among railroads, since the
number of people drawn to the station by each is likely to reflect
``cost causation'' quite closely. The Department notes, however, that,
as passenger boarding percentages change over time, the portion of
responsibility assigned to each party also may change. Station
modifications may involve long-term capital investment and planning,
while passenger boarding percentages are more volatile. Some railroads
may stop serving a station, while others may begin service, during the
period of time before modifications to the station are complete. To help
accommodate such situations, the rule refers to passenger boardings
``over the entire period during which the station is made accessible.''
This language is intended to emphasize that as circumstances change,
the parties involved have the responsibility to adjust their
arrangements for cost sharing. For example, suppose Railroad A has 30
percent of the passenger boardings in year 1, but by year 10 has 60
percent of the boardings. It would not be fair for Railroad A to pay
only 30 percent of the costs of station modifications occurring in later
years. Ultimately, the total cost burden for modifying the station over
(for example) 20 years would be allocated on the share of the total
number or boardings attributable to each railroad over the whole 20 year
period, in order to avoid such unfairness.
The third, and most complicated, situation is one in which no party
owns 50 percent of the station. For example, consider the following
hypothetical situation: ------------------------------------------------------------------------
Ownership Boardings
Party percentage percentage
------------------------------------------------------------------------
Private freight RR............................ 40 0
City.......................................... 30 0
Amtrak........................................ 0 25
Commuter A.................................... 30 50
Commuter B.................................... 0 25
------------------------------------------------------------------------ The private freight railroad drops out of the calculation of who is
responsible. All of the responsibility would be allocated among four
public entities: the city (a public entity who does not operate railroad
service), Amtrak, and the two commuter railroads. Half the
responsibility would go to public entity owners of the station (whether
or not they are railroads who run passenger service through the
station). The other half of the responsibility would go to railroads who
run passenger service through the station (whether or not they are
station owners).
On the ownership side of the equation, the city and Commuter A each
own half of that portion of the station that is not owned by the private
freight railroad. Therefore, the two parties divide up the ownership
half of the responsibility equally. Based on their ownership interest,
each of these two parties bears 25 percent of the responsibility for the
entire station. Note that, should ownership percentages or owners change
over the period during which the station is to be made accessible, these
percentages may change. It is ownership percentage over this entire
period that ultimately determines the percentage of responsibility.
On the passenger rail operations side of the equation, 50 percent of
passenger boardings are attributable to Commuter A and 25 percent each
to Commuter B and Amtrak. Therefore, half of this portion of the
responsibility belongs to Commuter A, while a quarter share each goes to
the other railroads. This means that, based on passenger boardings, 25
percent of the responsibility goes to Commuter A, 12.5 percent to
Commuter B, and 12.5 percent to Amtrak. Again, it is the proportion of
passenger boardings over the entire length of the period during which
the station is made accessible that ultimately determines the percentage
of responsibility. [[Page 561]] In this hypothetical, Commuter A is responsible for a total of 50
percent of the responsibility for the station. Commuter A is responsible
for 25 percent of the responsibility because of its role as a station
owner and another 25 percent because of its operation of passenger rail
service through the station.
The Department recognizes that there will be situations in which
application of this scheme will be difficult (e.g., involving problems
with multiple owners of a station whose ownership percentages may be
difficult to ascertain). The Department again emphasizes that agreement
among the parties is the best way of resolving these problems, but we
are willing to work with the parties to ensure a solution consistent
with this rule.
Section 37.51 Key Stations in Commuter Rail Systems
These sections require that key stations in light, rapid, and
commuter rail systems be made accessible as soon as practicable, but no
later than July 26, 1993. Being made accessible, for this purpose, means
complying with the applicable provisions of appendix A to this part.
``As soon as practicable'' means that, if modification can be made
before July 26, 1993, they must be. A rail operator that failed to make
a station accessible by July 1993 would be in noncompliance with the ADA
and this rule, except in a case where an extension of time had been
granted.
What is a key station? A key station is one designated as such by
the commuter authority or light/rapid rail operator, through the
planning process and public participation process set forth in this
section. The five criteria listed in the regulation are intended to
guide the selection process but, while the entity must take these
criteria into account (and this consideration must be reflected in the
planning process and documents), they are not mandatory selection
standards. That is, it is not required that every station that meets one
of the criteria be designated as a key station. Since the criteria are
not mandatory selection standards, the understanding of their terms is
also a matter appropriately left to the planning process. A tight,
legalistic definition is not necessary in the context of factors
intended for consideration. For instance, what constitutes a major
activity center or how close a station needs to be to another station to
not be designated as key depend largely on local factors that it would
not be reasonable to specify in this rule.
Given the wide discretion permitted to rail operators in identifying
key stations, there would be no objection to identifying as a key
station a new (presumably accessible) station now under construction.
Doing so would involve consideration of the key station criteria and
would be subject to the planning/public participation process.
If an extension to a rail system (e.g., a commuter system) is made,
such that the system comes to include existing inaccessible stations
that have not previously been part of the system, the Department
construes the ADA to require application of key station accessibility in
such a situation. The same would be true for a new start commuter rail
system that began operations using existing stations. Key station
planning, designation of key stations, and with being consistent with
the ADA would be required. The Department would work with the commuter
authority involved on a case-by-case basis to determine applicable time
limits for accessibility, consistent with the time frames of the ADA.
The entity must develop a compliance plan, subject to the public
participation and planning process set forth in paragraph (d) of each of
these sections. Note that this plan must be completed by July 26, 1992,
not January 26, 1992, as in the case of paratransit plans. The key
station plans must be submitted to FTA at that time. (The statute does
not require FTA approval of the plans, however.).
A rail operator may request an extension of the July 1993 completion
deadline for accessibility modifications to one or more key stations.
The extension for light and rapid rail stations can be up to July 2020,
though two thirds of the key stations (per the legislative history of
the statute, selected in a way to maximize accessibility to the whole
system) must be accessible by July 2010.
Commuter rail stations can be extended up to July 2010.
Requests for extension of time must be submitted by July 26, 1992.
FTA will review the requests on a station-by-station basis according to
the statutory criterion, which is whether making the station accessible
requires extraordinarily expensive alterations. An extraordinarily
expensive alteration is raising the entire platform, installing an
elevator, or making another alteration of similar cost and magnitude. If
another means of making a station accessible (e.g., installation of a
mini-high platform in a station where it is not necessary to install an
elevator or to provide access to the platform for wheelchair users),
then an extension can be granted only if the rail operator shows that
the cost and magnitude of the alteration is similar to that of an
elevator installation or platform raising.
The rule does not include a specific deadline for FTA consideration
of an extension request. However, since we are aware that, in the
absence of an extension request, accessibility must be completed by July
1993, we will endeavor to complete review of plans as soon as possible,
to give as much lead time as possible to local planning and
implementation efforts. [[Page 562]] Once an extension is granted, the extension applies to all
accessibility modifications in the station. However, the rail operator
should not delay non-extraordinarily expensive modifications to the
station. The key station plan and any extension request should include a
schedule for phasing in non-extraordinarily expensive modifications to
the station. For example, even if a key station is not going to be
accessible to wheelchair users for 15 years, pending the installation of
an elevator, the rail operator can improve its accessibility to persons
with visual impairments by installing tactile strips.
An extension cannot be granted except for a particular station which
needs an extraordinarily expensive modification. An extension cannot be
granted non-extraordinarily expensive changes to Station B because the
extraordinarily expensive changes to Station A will absorb many
resources. Non-extraordinarily expensive changes, however costly
considered collectively for a system, are not, under the statute,
grounds for granting an extension to one or more stations or the whole
system. Only particular stations where an extraordinarily expensive
modification must be made qualify for extensions.
The FTA Administrator can approve, modify, or disapprove any request
for an extension. For example, it is not a forgone conclusion that a
situation for which an extension is granted will have the maximum
possible extension granted. If it appears that the rail operator can
make some stations accessible sooner, FTA can grant an extension for a
shorter period (e.g., 2005 for a particular station rather than 2010).
Section 37.53 Exception for New York and Philadelphia
Consistent with the legislative history of the ADA, this section
formally recognizes the selection of key stations in two identified
litigation settlement agreements in New York and Philadelphia as in
compliance with the ADA. Consequently, the entities involved can limit
their key station planning process to issues concerning the timing of
key station accessibility. The section references also Sec. 37.9, which
provides that key station accessibility alterations which have already
been made, or which are begun before January 26, 1992, and which conform
to specified prior standards, do not have to be re-modified. On the
other hand, alterations begun after January 25, 1992 (including
forthcoming key station modifications under the New York and
Philadelphia agreements), must meet the requirements of appendix A to
this part.
This is an exception only for the two specified agreements. There
are no situations in which other cities can take advantage of this
provision. Nor are the provisions of the two agreements normative for
other cities. Other cities must do their own planning, with involvement
from local citizens, and cannot rely on agreements unique to New York
and Philadelphia to determine the appropriate number of percentage of
key stations or other matters.
Section 37.57 Required Cooperation
This section implements Sec. 242(e)(2)(C) of the ADA, which treats
as discrimination a failure, by an owner or person in control of an
intercity rail station, to provide reasonable cooperation to the
responsible persons' efforts to comply with accessibility requirements.
For example, the imposition by the owner of an unreasonable insurance
bond from the responsible person as a condition of making accessibility
modifications would violate this requirement. See H. Rept. 101-485 at
53.
The statute also provides that failure of the owner or person in
control to cooperate does not create a defense to a discrimination suit
against the responsible person, but the responsible person would have a
third party action against the uncooperative owner or person in control.
The rule does not restate this portion of the statute in the regulation,
since it would be implemented by the courts if such an action is
brought. Since cooperation is also a regulatory requirement, however,
the Department could entertain a section 504 complaint against a
recipient of Federal funds who failed to cooperate.
The House Energy and Commerce Committee provided as an example of an
action under this provision a situation in which a failure to cooperate
leads to a construction delay, which in turn leads to a lawsuit by an
individual with disabilities against the responsible person for missing
an accessibility deadline. The responsible person could not use the lack
of cooperation as a defense in the lawsuit, but the uncooperative party
could be made to indemnify the responsible person for damages awarded
the plaintiff. Also, a responsible person could obtain an injunction to
force the recalcitrant owner or controller of the station to permit
accessibility work to proceed. (Id.)
This provision does not appear to be intended to permit a
responsible person to seek contribution for a portion of the cost of
accessibility work from a party involved with the station whom the
statute and Sec. 37.49 do not identify as a responsible person. It
simply provides a remedy for a situation in which someone impedes the
responsible person's efforts to comply with accessibility obligations. [[Page 563]]
Section 37.59 Differences in Accessibility Completion Date Requirements
Portions of the same station may have different accessibility
completion date requirements, both as the result of different statutory
time frames for different kinds of stations and individual decisions
made on requests for extension. The principle at work in responding to
such situations is that if part of a station may be made accessible
after another part, the ``late'' part of the work should not get in the
way of people's use of modifications resulting from the ``early'' part.
For example, the commuter part of a station may have to be made
accessible by July 1993 (e.g., there is no need to install an elevator,
and platform accessibility can be achieved by use of a relatively
inexpensive mini-high platform). The Amtrak portion of the same station,
by statute, is required to be accessible as soon as practicable, but no
later than July 2010. If there is a common entrance to the station, that
commuter rail passengers and Amtrak passengers both use, or a common
ticket counter, it would have to be accessible by July 1993. If there
were a waiting room used by Amtrak passengers but not commuter
passengers (who typically stand and wait on the platform at this
station), it would not have to be accessible by July 1993, but if the
path from the common entrance to the commuter platform went through the
waiting room, the path would have to be an accessible path by July 1993.
Section 37.61 Public Transportation Programs and Activities in Existing
Facilities
This section implements section 228(a) of the ADA and establishes
the general requirement for entities to operate their transportation
facilities in a manner that, when viewed in its entirety, is accessible
to and usable by individuals with disabilities. The section clearly
excludes from this requirement access by persons in wheelchairs, unless
these changes would be necessitated by the alterations or key station
provisions.
This provision is intended to cover activities and programs of an
entity that do not rise to the level of alteration. Even if an entity is
not making alterations to a facility, it has a responsibility to conduct
its program in an accessible manner. Examples of possible activities
include user friendly farecards, schedules, of edge detection on rail
platforms, adequate lighting, telecommunication display devices (TDDs)
or text telephones, and other accommodations for use by persons with
speech and hearing impairments, signage for people with visual
impairments, continuous pathways for persons with visual and ambulatory
impairments, and public address systems and clocks.
The Department did not prescribe one list of things that would be
appropriate for all stations. For example, we believe that tactile
strips are a valuable addition to platforms which have drop-offs. We
also believe that most larger systems, to the extent they publish
schedules, should make those schedules readily available in alternative
formats. We encourage entities to find this another area which benefits
from its commitment to far-reaching public participation efforts.
Subpart D--Acquisition of Accessible Vehicles by Public Entities
Section 37.71 Purchase or Lease of New Non-Rail Vehicles by Public
Entities Operating Fixed Route Systems
This section sets out the basic acquisition requirements for a
public entity purchasing a new vehicle. Generally, the section requires
any public entity who purchases or leases a new vehicle to acquire an
accessible vehicle. There is a waiver provision if lifts are unavailable
and these provisions track the conditions in the ADA. One statutory
condition, that the public entity has made a good faith effort to locate
a qualified manufacturer to supply the lifts, presumes a direct
relationship between the transit provider and the lift manufacturer. In
fact, it is the bus manufacturer, rather than the transit provider
directly, who would have the task of looking for a supplier of lifts to
meet the transit provider's specifications. The task must still be
performed, but the regulation does not require the transit provider to
obtain actual information about available lifts. Rather the bus
manufacturer obtains the information and provides this assurance to the
entity applying for the waiver, and the entity may rely on this
representation. More specifically, the regulation requires that each
waiver request must include a copy of the written solicitation (showing
that it requested lift-equipped vehicles) and written responses from
lift manufacturers to the vehicle manufacturer documenting their
inability to provide the lifts. The information from the lift
manufacturer must also include when the lifts will be available.
In addition, the waiver request must include copies of
advertisements in trade publications and inquiries to trade associations
seeking lifts for the buses. The public entity also must include a full
justification for the assertion that a delay in the bus procurement
sufficient to obtain a lift-equipped bus would significantly impair
transportation services in the community. There is no length of time
that would be a per se delay constituting a ``significant impairment''.
It will be more difficult to obtain a waiver if a relatively short
rather than relatively [[Page 564]] lengthy delay is involved. A showing of timetables, absent a showing of
significant impairment of actual transit services, would not form a
basis for granting a waiver.
Any waiver granted by the Department under this provision will be a
conditional waiver. The conditions are intended to ensure that the
waiver provision does not create a loophole in the accessible vehicle
acquisition requirement that Congress intended to impose. The ADA
requires a waiver to be limited in duration and the rule requires a
termination date to be included. The date will be established on the
basis of the information the Department receives concerning the
availability of lifts in the waiver request and elsewhere. In addition,
so that a waiver does not become open-ended, it will apply only to a
particular procurement. If a transit agency wants a waiver for a
subsequent delivery of buses in the procurement, or another procurement
entirely, it will have to make a separate waiver request.
For example, if a particular order of buses is delivered over a
period of time, each delivery would be the potential subject of a waiver
request. First, the entity would request a waiver for the first shipment
of buses. If all of the conditions are met, the waiver would be granted,
with a date specified to coincide with the due date of the lifts. When
the lifts become available those buses would have to be retrofitted with
the lifts. A subsequent delivery of buses--on the same order--would have
to receive its own waiver, subject to the same conditions and
specifications of the first waiver.
The purpose of the waiver, as the Department construes it, is to
address a situation in which (because of a sudden increase in the number
of lift-equipped buses requested) lift manufacturers are unable to
produce enough lifts to meet the demand in a timely fashion.
Section 37.73 Purchase or Lease of Used Non-Rail Vehicles by Public
Entities Operating a Fixed Route System
The basic rule is that an acquisition of a used vehicle would have
to be for an accessible vehicle.
There is an exception, however, for situations in which the transit
provider makes a good faith effort to obtain accessible used vehicles
but does not succeed in finding them. The ADA requires transit agencies
to purchase accessible used vehicles, providing a ``demonstrated good
faith efforts'' exception to the requirement. The reports of the Senate
Committee on Labor and Human Resources and the House Committee on
Education and Labor offered the following guidance on what ``good faith
efforts'' involve:
The phrase ``demonstrated good faith efforts'' is intended to
require a nationwide search and not a search limited to a particular
region. For instance, it would not be enough for a transit operator to
contact only the manufacturer where the transit authority usually does
business to see if there are accessible used buses. It involves the
transit authority advertising in a trade magazine, i.e., Passenger
Transport, or contacting the transit trade association, American Public
Transit Association (APTA), to determine whether accessible used
vehicles are available. It is the Committee's expectation that as the
number of buses with lifts increases, the burden on the transit
authority to demonstrate its inability to purchase accessible vehicles
despite good faith efforts will become more and more difficult to
satisfy. S. Rept. 101-116 at 49; H. Rept. 101-485 at 90.
Consistent with this guidance, this section requires that good faith
efforts include specifying accessible vehicles in bid solicitations. The
section also requires that the entity retain for two years documentation
of that effort, and that the information be available to FTA and the
public.
It does not meet the good faith efforts requirement to purchase
inaccessible, rather than accessible, used buses, just because the
former are less expensive, particularly if the difference is a
difference attributable to the presence of a lift. There may be
situations in which good faith efforts involve buying fewer accessible
buses in preference to more inaccessible buses.
The public participation requirements involved in the development of
the paratransit plans for all fixed route operators requires an ongoing
relationship, including extensive outreach, to the community likely to
be using its accessible service. We believe that it will be difficult to
comply with the public participation requirements and not involve the
affected community in the decisions concerning the purchase or lease of
used accessible vehicles.
There is an exception to these requirements for donated vehicles.
Not all ``zero dollar'' transfers are donations, however. The
legislative history to this provision provides insight.
It is not the Committee's intent to make the vehicle accessibility
provisions of this title applicable to vehicles donated to a public
entity. The Committee understands that it is not usual to donate
vehicles to a public entity. However, there could be instances where
someone could conceivably donate a bus to a public transit operator in a
will. In such a case, the transit operators should not be prevented from
accepting a gift.
The Committee does not intend that this limited exemption for
donated vehicles be used to circumvent the intent of the ADA. For
example, a local transit authority could not arrange to be the recipient
of donated inaccessible buses. This would be a violation of the ADA. S.
Rpt. 101-116, at 46; H. Rpt. 101-486, at 87. [[Page 565]] Entities interested in accepting donated vehicles must submit a
request to FTA to verify that the transaction is a donation.
There is one situation, in which a vehicle has prior use is not
treated as a used vehicle. If a vehicle has been remanufactured, and it
is within the period of the extension of its useful life, it is not
viewed as a used vehicle (see H. Rept. 101-485, Pt 1 at 27). During this
period, such a vehicle may be acquired by another entity without going
through the good faith efforts process. This is because, at the time of
its remanufacture, the bus would have been made as accessible if
feasible. When the vehicle has completed its extended useful life (e.g.,
the beginning of year six when its useful life has extended five years),
it becomes subject to used bus requirements.
Section 37.75 Remanufacture of Non-Rail Vehicles and Purchase or Lease
of Remanufactured Non-rail Vehicles by Public Entities Operating Fixed
Route Systems
This section tracks the statute closely, and contains the following
provisions. First, it requires any public entity operating a fixed route
system to purchase an accessible vehicle if the acquisition occurs after
August 25, 1990, if the vehicle is remanufactured after August 25, 1990,
or the entity contracts or undertakes the remanufacture of a vehicle
after August 25, 1990. The ADA legislative history makes it clear that
remanufacture is to include changes to the structure of the vehicle
which extend the useful life of the vehicle for five years. It clearly
is not intended to capture things such as engine overhauls and the like.
The term remanufacture, as used in the ADA context, is different
from the use of the term in previously issued FTA guidance. The term has
a specific meaning under the ADA: there must be structural work done to
the vehicle and the work must extend the vehicle's useful life by five
years.
The ADA imposes no requirements on what FTA traditionally considers
bus rehabilitation. Such work involves rebuilding a bus to original
specifications and focuses on mechanical systems and interiors. Often
this work includes replacing components. It is less extensive than
remanufacture.
The statute, and the rule, includes an exception for the
remanufacture of historical vehicles. This exception applies to the
remanufacture of or purchase of a remanufactured vehicle that (1) is of
historic character; (2) operates solely on a segment of a fixed route
system which is on the National Register of Historic Places; and (3)
making the vehicle accessible would significantly alter the historic
character of the vehicle. The exception only extends to the
remanufacture that would alter the historic character of the vehicle.
All modifications that can be made without altering the historic
character (such as slip resistant flooring) must be done.
Section 37.77 Purchase or Lease of New Non-Rail Vehicles by Public
Entities Operating a Demand Responsive System for the General Public
Section 224 of the ADA requires that a public entity operating a
demand responsive system purchase or lease accessible new vehicles, for
which a solicitation is made after August 25, 1990, unless the system,
when viewed in its entirety, provides a level of service to individuals
with disabilities, including individuals who use wheelchairs, equivalent
to the level of service provided to individuals without disabilities.
This section is the same as the October 4, 1990 final rule which
promulgated the immediately effective acquisition requirements of the
ADA.
The Department has been asked to clarify what ``accessible when
viewed in its entirety'' means in the context of a demand responsive
system being allowed to purchase an inaccessible vehicle. First, it is
important to note that this exception applies only to demand responsive
systems (and not fixed route systems). The term ``equivalent service''
was discussed during the passage of the ADA. Material from the
legislative history indicates that ``when viewed in its entirety/
equivalent service'' means that ``when all aspects of a transportation
system are analyzed, equal opportunities for each individual with a
disability to use the transportation system must exist. (H. Rept. 101-
184, Pt. 2, at 95; S. Rept. 101-116 at 54). For example, both reports
said that ``the time delay between a phone call to access the demand
responsive system and pick up the individual is not greater because the
individual needs a lift or ramp or other accommodation to access the
vehicle.'' (Id.)
Consistent with this, the Department has specified certain service
criteria that are to be used when determining if the service is
equivalent. As in previous rulemakings on this provision, the standards
(which include service area, response time, fares, hours and days of
service, trip purpose restrictions, information and reservations
capability, and other capacity constraints) are not absolute standards.
They do not say, for example, that a person with a disability must be
picked up in a specified number of hours. The requirement is that there
must be equivalent service for all passengers, whether or not they have
a disability. If the system provides service to persons without
disabilities within four hours of a call for service, then passengers
with disabilities must be afforded the same service.
The Department has been asked specifically where an entity should
send its ``equivalent level of service'' certifications. We provide the
following: Equivalent level of service certifications should be
submitted to the state program office if you are a public entity
receiving FTA funds through the [[Page 566]] state. All other entities should submit their equivalent level of
service certifications to the FTA regional office (listed in appendix B
of this part). Certifications must be submitted before the acquisition
of the vehicles.
Paragraph (e) of this section authorizes a waiver for the
unavailability of lifts. Since demand responsive systems need not
purchase accessible vehicles if they can certify equivalent service, the
Department has been asked what this provision is doing in this section.
Paragraph (e) applies in the case in which an entity operates a
demand responsive system, which is not equivalent, and the entity cannot
find accessible vehicles to acquire. In this case, the waiver provisions
applicable to a fixed route entity purchasing or leasing inaccessible
new vehicles applies to the demand responsive operator as well.
Section 37.79 Purchase or Lease of New Rail Vehicles by Public Entities
Operating Rapid or Light Rail Systems
This section echoes the requirement of Sec. 37.71--all new rail
cars must be accessible.
Section 37.81 Purchase or Lease of Used Rail Vehicles by Public Entities
Operating Rapid or Light Rail Systems
This section lays out the requirements for a public entity acquiring
a used rail vehicle. The requirements and standards are the same as
those specified for non-rail vehicles in Sec. 37.73. While we recognize
it may create difficulties for entities in some situations, the statute
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