Transportation for Individuals with Disabilities --Bus Stop Accessibility, Paratransit Plan Updates, Visitor Eligilbility, and Equivalent Facilitation

Number 61 25409
05-21-96

[Federal Register: May 21, 1996 (Volume 61, Number 99)]
[Rules and Regulations]
[Page 25409-25416]
>From the Federal Register Online via GPO Access [wais.access.gpo.gov]

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DEPARTMENT OF TRANSPORTATION

Office of the Secretary

49 CFR Parts 37 and 38

[Docket No. 49658]
RIN 2105-AC13


Transportation for Individuals With Disabilities

AGENCY:
Department of Transportation (DOT), Office of the Secretary.

ACTION: Final rule.

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SUMMARY: The Department is amending several provisions of its rules
implementing the Americans with Disabilities Act (ADA). Some of the
changes are being made in response to petitions received by the
Department. The first change will ensure that the rule treats
independent private schools similarly to other schools. The second
change will apply the same gap standard to high speed automated
guideway transit (AGT) systems as is applied to other rapid and light
rail systems. The third petition granted in this rule will give local
jurisdictions more discretion with respect to advance reservation
systems for paratransit services. However, the Department is
withdrawing a proposal that would have permitted transit authorities to
determine that certain bus stops may be designated as non-accessible
stops.
    This rule will also make six amendments that derive from the
Department's own proposals. The first will decrease the paperwork
burden of producing annual paratransit plan updates once the
paratransit system reaches full compliance with ADA regulations. The
second will clarify a visitor's eligibility for paratransit services.
The third will clarify the vehicle acquisition requirements for private
entities not primarily engaged in the business of transporting people.
The fourth amendment will remove ``inability to comply'' as a condition
of gaining a determination of equivalent facilitation. The final two
amendments will eliminate confusion in a cross reference within the
regulation and correct a typographical error. The Department has
concluded that no change is warranted in the regulatory definition of a
personal care attendant.

EFFECTIVE DATE: This final rule is effective June 20, 1996.

FOR FURTHER INFORMATION CONTACT: Robert C. Ashby, Deputy Assistant
General Counsel for Regulation and Enforcement, Department of
Transportation, 400 7th Street, SW., Room 10424, Washington, DC 20590.
(202) 366-9306 (voice); (202) 755-7687 (TDD); or Richard Wong, Office
of Chief Counsel, Federal Transit Administration, same street address,
Room 9316. (202) 366-4011.

SUPPLEMENTARY INFORMATION:

I. Introduction

    The Department published its notice of proposed rulemaking (NPRM)
on the issues covered by this rule on July 21, 1994. The NPRM included
proposed amendments that were petitioned for by the public on which the
Department took no initial position and proposals that the Department
generated internally. The Department received over 275 comments on the
NPRM, most of which came from individuals with disabilities,
organizations representing them and transit authorities. Additional

[[Page 25410]]

comments were received from state disability advocates, engineering
groups, paratransit providers and equipment manufacturers, as well as
others.

II. Petitions for Rulemaking

1. Bus Stops

    This issue, raised in the NPRM on the basis of a petition from
Seattle Metro, was the most controversial in the rulemaking. Disability
community commenters were virtually unanimous in strongly opposing
Seattle's suggestion that transit authorities be authorized to declare
a bus stop ``off limits'' to wheelchair users, or in some cases, to all
lift users, on the basis that conditions at the stop made its use too
dangerous for such passengers. These commenters included disability
advocacy organizations, individuals, the U.S. Department of Justice,
and state and local government agencies. A few transit agencies also
shared their point of view.
    The first point these commenters made was that individuals with
disabilities--not transit agencies--should decide when a given stop is
appropriate for them to use. Individuals with disabilities know their
own abilities better than anyone else, and can make reasonable choices
about what is or is not safe for them. Allowing other parties, such as
transit agencies, to make these choices smacks of paternalism and is
the sort of well-intended constraint on the activities of persons with
disabilities that the ADA is specifically intended to prevent.
Providing discretion to transit authorities to deny to passengers with
disabilities the use of facilities that other passengers are allowed to
use is a clear violation of the ADA's nondiscrimination mandate, many
commenters said.
    What made the proposal additionally objectionable, many of these
commenters said, was that there was no empirical evidence that there
was a significant safety problem at bus stops. There might be
speculation that a safety problem existed, and worry about potential
liability, but there were few, if any, facts presented that the problem
was real. When there is a nondiscrimination mandate like that of the
ADA, any classification that denies services to the protected class
must be based on demonstrated facts, they said, not on fear. Many of
these commenters pointed to the ADA's ``direct threat'' concept as a
model for determining when it is acceptable to deny services or
facilities to individuals with disabilities based on a safety risk.
This concept, they noted, focuses on the individual situation of each
disabled person, not on the presumed abilities of a class of persons
with disabilities.
    Finally, a number of these commenters noted that, if individuals
are denied use of stops, they will become eligible for paratransit,
which will increase costs to transit authorities. There could also be
situations in which people would be denied service altogether because
of limited capacity on paratransit systems, one commenter noted. (Two
transit authority commenters said, on the other hand, that transit
authorities' desire to avoid adding to paratransit costs would be a
deterrent to abuse of discretion to limit passengers' use of unsafe
stops.)
    Many disability community commenters, and several transit
authorities as well, opposed the petition's suggestion that the
standard for determining the suitability of a stop for disabled
passengers be the new construction standard for bus stops in the
Americans with Disabilities Act Accessibility Guidelines (AADAG). This
standard, they said, was of questionable relevance to streetside bus
stops in mass transit systems, and was inappropriate for use in a
situation involving existing facilities in any event. The obligation
that public entities have for existing facilities, they noted, is to
make them program accessible, not necessarily to bring them up to new
construction standards. The new construction standard was never
intended to be a safety standard, or a criterion to determine when an
individual with disabilities would be allowed to use a facility. The
petitioner was the only commenter to support the proposal to use the
new construction standard.
    A large majority of the transit providers that commented supported
the idea that they should have discretion to declare stops ``off
limits'' to lift users on the basis of safety. Because some stops had
hazards that affect passengers with disabilities in ways that other
passengers are not affected (e.g., stops that have a narrow area for
maneuvering that present a problem to wheelchair users but not
ambulatory persons, stops with a drop-off that can result in a
wheelchair overturning), it is rational to prevent accidents and
injuries by denying use of these stops to persons for whom the hazards
are serious. Concern about liability was another reason advanced by
many transit commenters. Seattle said it had experienced seven
accidents because of bus stop problems since 1987, including one
serious injury that resulted in a settlement of over $400,000.
    While the transit community generally supported Seattle's petition,
there were a number of interesting nuances in transit provider
comments. Some emphasized the necessity of working with the disability
community on bus stop access issues, including public hearings or other
opportunities for public participation. Improving or moving existing
bus stops was a step mentioned by others. Differences among buses and
passengers need to be taken into consideration, others said. Prodding
the Department of Justice to issue regulations requiring local
governments to work on making bus stops under their control program
accessible was another suggestion. Better training for drivers on how
to deploy lifts safely in a variety of situations was also recommended.
Some commenters also mentioned (but apparently did not favor) the
possibility of closing stops to all passengers if they were not safely
usable by passengers with disabilities.
    This is a case in which both sides of the debate have genuine
concerns. The petitioner and comments supporting its position worry, in
good faith, about potential safety problems facing wheelchair users at
some bus stops and about ensuing liability problems that may result for
transit providers. In the absence of legal constraints on the use of
classifications based on disability, it could arguably be rational for
transit providers to take the kind of action that the petition
proposes.
    However, the ADA imposes strong legal constraints on the use of
classifications based on disability. Under the ADA, a proposed action
which treats a disability-based class of persons differently from the
rest of the public cannot be accepted merely because it may assuage a
party's good faith concerns about safety. This is a position that the
Department has taken consistently as it has developed and implemented
its ADA regulations.
    For example, before and during the development of Part 37, there
was considerable discussion of transit providers' good-faith safety
concerns about transporting three-wheeled ``scooters.'' Many commenters
asserted that these devices were unstable and difficult to secure, and
asked that transit providers have the discretion to exclude them on the
basis of these safety-related concerns. The Department required that
providers carry such mobility devices, noting the absence of
``information in the record that would support a finding that carrying
non-traditional wheelchairs would constitute a `direct threat' to the
safety of others. * * *'' (56 FR 45617; September 6, 1991).
    Subsequently, transit community commenters raised the issue of the
use

[[Page 25411]]

of lifts by standees, which the original version of Part 37 required.
The commenters expressed the concern that standees could fall off the
lifts or hit their heads, resulting in injury to passengers and
liability for providers. With one exception (concerning a particular
lift model that was no longer being manufactured), there was little
information in the record demonstrating that a real safety problem, as
distinct from speculation or fears concerning potential safety
problems, existed. The Department rejected the proposal, saying that--

    [t]he ADA is a nondiscrimination statute, intended to ensure * *
* that people with disabilities have access to transportation
services. To permit a transportation provider to exclude a category
of persons with disabilities from * * * access to a vehicle on the
basis of a perceived safety hazard, absent information in the record
that the hazard is real, would be inconsistent with the statute. * *
* While we understand the concerns of transit agency commenters
about the potential safety risks that may be involved, the
Department does not have a basis in the rulemaking record for
authorizing a restriction on lift use by standees. (58 FR 63096;
November 30, 1993).

    The Department's analysis of the Seattle petition is very similar
to its response to these two previous issues. The petition presents a
genuine, good-faith concern that a certain condition (here, terrain or
other problems at particular bus stops) may create a safety hazard for
a class of persons with disabilities. There is, in the comments
favoring the petition, agreement that difficult conditions at some
stops might, indeed, create some safety risks for wheelchair users or
other persons with disabilities. But there is little in the record to
suggest that there is substantial, pervasive, or strong evidence that a
real, as distinct from speculative, safety problem exists.
    To its credit, the petitioner attempted to show the Department that
problem stops existed for which the petitioner's proposed remedy was
needed. The petitioner provided a videotaped demonstration of
wheelchair users attempting to get on and off buses using lifts at
several problem stops. After reviewing the tape, the Department
concluded that it is reasonable to believe that at such stops,
wheelchair users may well have greater difficulty, and take longer, in
using bus lifts than at other stops. In some of the situations, there
could be a higher risk to wheelchair users than at other, more
``normal,'' stops. The Department does not find this evidence
sufficient, however, to justify carving out an exception to the
nondiscrimination mandate of the ADA.
    In thinking about situations in which safety reasons are advanced
for using disability-based classifications, the Department finds it
useful to consider the ``direct threat'' provisions that exist in other
provisions of the ADA. ``Direct threat'' permits exceptions--specific
to an individual--to be made to ADA nondiscrimination requirements on
the basis of safety. The Department of Justice (DOJ) rule implementing
Title III of the ADA in the context of public accommodations defines
the concept as follows:

    Direct threat means a significant risk to the health or safety
of others that cannot be eliminated by a modification of policies,
practices, or procedures, or by the provision of auxiliary aids or
services. In determining whether an individual poses a direct threat
to the health or safety of others, a public accommodation must make
an individualized assessment, based on a reasonable judgment that
relies on current medical knowledge or on the best available
objective evidence, to ascertain: the nature, duration, and severity
of the risk; the probability that the potential injury will actually
occur; and whether reasonable modifications of policies, practices,
or procedures will mitigate the risk. (28 CFR 36.208 (b)-(c)).

Very similar regulatory language appears in the Equal Employment
Opportunity Commission (EEOC) rules implementing Title I of the ADA in
the context of employment (29 CFR 1630.2(r); see also discussion 56 FR
35745; July 26, 1991). The Department of Justice regulation
implementing Title II of the ADA in the context of state and local
government programs does not include ``direct threat'' language in its
regulatory text, but the preamble applies the concept to the essential
eligibility requirements for participating in state and local programs
(56 FR 35701; July 26, 1991).
    While the DOJ and EEOC language concerning ``direct threat'' does
not necessarily apply in its entirety to transportation issues, the
Department believes that it is appropriate, and in keeping with the
language and intent of the statute, to determine that disability-based
classifications in transportation having a safety rationale are
supportable only on the basis of analysis that incorporates the
essentials of the ``direct threat'' concept in a way consistent with
the nature of transportation programs. The petition at issue in this
rulemaking does not, in the Department's view, closely approach what is
necessary to be adopted under such an analysis.
    As a general matter, the points raised by commenters opposed to the
proposal, as described above, have been more persuasive to the
Department than those points made by its proponents. These points add
to the discussion above as reasons for the Department's decision.
    The Department believes that transit providers which, like Seattle,
sincerely desire both to provide nondiscriminatory service to
individuals with disabilities and to maximize bus stop safety have some
means available to achieve these objectives. For example, a transit
provider could provide information to lift users about potential
hazards at certain stops and offer informational on alternative stops
or routings to such passengers, where alternatives were available. The
provider could also offer paratransit to those passengers who chose to
avoid using the stops as a result.
    The transit provider could make operational modifications to
mitigate potential hazards. For example, if there is limited space or a
potential hazard at a stop, the bus could let a wheelchair user board
at a nearby area that was easier to use or stop at a greater distance
from the curb. We are aware that transit providers are often reluctant
to depart from normal practices in this regard (although such
deviations appear commonplace during inclement weather, such as when
bottomless puddles, ``Blizzard of '96''-size snowbanks, or carnivorous
potholes make access to normal stops difficult for all passengers).
Nevertheless, these are among the kinds of ``reasonable modifications
of policies, practices, or procedures [to] mitigate the risk'' that the
ADA calls for.
    Transit providers can also urge local governments to improve
accessibility to bus stops, mitigate hazards at stops, or, if need be,
move stops to better locations. The Department is aware that transit
providers often do not control the placement of stops or the land on
which they are located, though we believe that transit providers should
continue the effort to work with their local governments on these
matters.
    For these reasons, the Department is withdrawing the proposal,
based on the Seattle petition, to permit transit providers to limit the
use of certain bus stops by lift users. The existing rule's language
(49 CFR 37.167(g)) will remain in effect, without change. Any transit
provider that may have instituted limits on the use of particular stops
by lift users, except as authorized by this provision, must cease
implementing the limits, as they are explicitly contrary to the
Department's ADA rule.

[[Page 25412]]

2. Requirements for Private School Transportation

    The Department has decided to grant the petition of the National
Association of Independent Schools (NAIS) and adopt the proposed
private school exemption. In doing so, the Department emphasizes the
importance of ensuring that schools provide disabled students with
equal access to all of the schools' academic and extracurricular
programs. Private schools will therefore have to provide equivalent
transportation services to disabled students in order to be eligible
for the exemption. The final rule will apply the same standard for
equivalent service as is found in Sec. 37.105.
    This change is being made because the current requirement that all
new buses purchased be lift equipped does not apply to most schools.
Public schools are exempt because their transportation services are
excluded from the ADA's definition of ``designated public
transportation.'' Schools with a religious affiliation are exempt based
on the ADA's exemption for religious organizations. Private elementary
and secondary schools that receive Federal financial assistance get the
same exemption as public schools if they provide equivalent
transportation services to students with disabilities and are covered
by section 504 of the Rehabilitation Act of 1973. By now, the
Department's regulation exempts all schools except private, non-
religious schools that receive no Federal financial assistance.
    The NAIS petition pointed out the anomalous result of the
regulation applying more stringent and costly standards to schools that
receive no Federal financial assistance than is applied to schools that
do receive assistance. In response to the NAIS petition, the NPRM
proposed amending Sec. 37.27 to apply the same equivalent services
standard to independent schools as is applied to private schools that
receive Federal assistance. The majority of the comments received on
this aspect of the proposal supported extending the private school
exemption. However, many commenters did express concerns about disabled
students' access to school events. This concern was shared by the few
commenters who opposed the exemption.
    The Department also shares these concerns. The independent private
schools will be subject to the same equivalent service standard that
other private schools must meet, namely that ``when viewed in [their]
entirety'' transportation services must be ``provided in the most
integrated setting appropriate to the needs of the individual and is
equivalent to the service provided other individuals * * *'' 49 C.F.R.
Sec. 37.105. Any test for equivalence under Sec. 37.105 would go beyond
providing equal access to transportation to and from school and include
transportation to and from all of the school's extracurricular
activities. This approach is consistent with the Department of
Education's requirement that non-academic and extracurricular
activities and services be provided in such a way as to ensure disabled
students an equal opportunity for participation. See 34 C.F.R.
Sec. 104.37(a)(1). In fact, the Department of Education goes so far as
to include transportation itself as a covered non-academic service. See
id. at Sec. 104.37(a)(2).
    One commenter raised the possibility that a school that does not
purchase lift equipped buses because it has no disabled students might
exclude disabled applicants in the future to avoid the expense of
purchasing lifts. This concern could be valid. However, the possibility
of the rule change encouraging future discrimination in the admissions
process is speculative and the Department has neither the authority nor
the expertise to address admissions discrimination.

3. People Mover Gap Standards

    The Department has decided to adopt the NPRM's proposal to allow
high speed AGT systems to comply with the same train door to platform
gap standard as other high speed rail systems. The petition was
submitted by the American Society of Civil Engineers (ASCE). ASCE cited
the wide variation in AGT system speed--5 to 80 miles per hour--and
requested that faster AGT systems be subjected to the less stringent
requirements applied to rapid and light rail systems. ASCE had studied
existing AGT systems and claimed that most do not meet current AGT
standards of one inch horizontal and half inch vertical gaps between
the train door and the platform edge. According to ASCE's analysis, AGT
systems that run at under 20 miles per hour can reasonably be expected
to meet the current gap standards. Faster AGT systems, however, require
vehicles with larger, more complicated suspensions that make it more
difficult to meet the smaller gap standard.
    The proposal was not controversial. Only one of the 17 comments
received objected to the principle of a speed division and two objected
to the proposed 3-inch gap standard for the higher speed trains. The
proposal would allow AGT systems that operate at over 20 mph at any
point on the system to comply with the rapid/light rail gap standards
of a 3 inch horizontal gap and \5/8\ inch vertical gap. One commenter
suggested that the larger gap only be permitted on sections of the
track on which the AGT system actually ran at over 20 mph. The
suggestion is being rejected because it ignores the underlying
rationale for the speed division. If the AGT vehicle is to be capable
of traveling at higher speeds on other segments of the system, it will
require the more sophisticated suspension, which will in turn make the
smaller gap standard more difficult to meet at all stops.
    ASCE pointed out that the Access Board's preamble discussion refers
to ``AGT vehicles that travel at slow speed,'' and subsequent Access
Board manuals suggest that the rapid/light rail gap standard should
apply to faster AGT vehicles. The Access Board has interpreted its
guidelines as permitting the construction that ASCE urges and the
Department's action today will prevent any conflict or confusion
between the guidelines and the rule.

4. 14-Day Advance Reservations

    The proposal to remove the 14-day advance reservation requirement
generated significant interest among commenters of all types. While
approximately 130 commenters advocated keeping the reservation
requirement, most expressed dissatisfaction with current reservation
systems, suggested different reservation times, capacity allotments for
advanced reservations or demonstration projects before a change in the
requirement is made. Of the approximately 60 commenters who advocated
repealing the requirement, many made similar recommendations.
    Approximately 45 commenters made 11 different suggestions for
changing the number of days allowed for advance reservations. Ten of
these commenters believed that the number of days should be flexible
and made no specific suggestion, five others suggested a range of 1 to
3 days, one commenter suggested 3 to 7 days and one suggested 7 to 8
days. Among the 27 commenters who endorsed a specific number of days,
there were seven different recommendations, ranging from 1 day to 10
days, with 7 days being the most popular (13 commenters).
    Eight commenters suggested limiting the percentage of paratransit
capacity which could be reserved in advance. Most of these eight
commenters did not offer a specific percentage limit, those who did
were split between 40 and 50 percent. Three other commenters

[[Page 25413]]

suggested capping the number of trips an individual rider could reserve
in advance. Similarly, these commenters did not agree on any one
number.
    The most common complaint about advance reservations was that they
caused an unmanageable number of cancellations and no-shows. Twenty one
commenters suggested penalties for riders who failed to show up for
scheduled rides. Twelve other commenters suggested that this problem
could be solved by requiring confirmation. Among these twelve comments
were three different suggestions for when the confirmation should be
made; there was also disagreement over whether the rider or the transit
provider should be responsible for making the confirmation call.
    Finally, ten commenters complained that long reservation times
created prioritization, illegally favoring individuals with certain
types of disabilities or favoring certain types of trips. Eight
commenters pointed out that advance reservations drain the capacity of
paratransit systems, but seven others countered that the real problem
is limited capacity, which in turn causes reservation problems.
    In light of the substantial dissatisfaction with the current 14-day
reservation requirement evident from the comments and the abundant and
varied suggestions for improving reservation systems, the Department
has decided to remove the requirement and allow local transit
providers, in conjunction with the riding public, the discretion to
establish reservation systems that best meet local needs. Under the
amended rule, transit systems can establish any reservation system that
meets the other requirements of this part, with a maximum 14-day
advance reservation period. Paratransit systems that wish to take
advantage of the flexibility provided by this amendment by changing
their reservation systems will have to ensure public participation in
the decision to change and local review of the functioning of the new
system. The public participation requirements of Sec. 37.137(b) will
apply.
    One of the points commenters made in favor of retaining some
advance reservation capacity in paratransit systems was the added
security it affords concerning occasional, important, time-sensitive
trips. For example, if someone has airline reservations, the person
needs to be at the airport at a particular time on a particular day.
The person is likely to be more comfortable if he or she knows, prior
to the day before travel, that a paratransit reservation is confirmed.
While we do not believe that this kind of situation is sufficient,
given the downsides of an advance reservation requirement, to justify
mandating advance reservations, we suggest that, as transit providers
consult with their communities about reservation system changes, that
they explore means of addressing this concern.
    It should be emphasized that, in order to meet Part 37
requirements, all paratransit systems must provide at least one-day
advance reservations at all times. One of the apparent reasons that
users take advantage of existing advance reservation systems in large
numbers is their apprehension that, if they wait until the day before
travel, the capacity of the system to serve them will have been
exhausted. This can lead, in turn, to the scheduling, no-show, and
cancellation problems cited in many comments. To make a short-term
reservation or real-time scheduling system work properly, transit
providers need to make sure that adequate vehicle and communications
capacity is available, such that systematic denials of service do not
exist to an extent that would constitute a capacity constraint (see
Sec. 37.131(f)(3)((i)(B)).

III. DOT-Proposed Adjustments to the Rule

1. Reduction of Paperwork for Paratransit Plan Updates

    The NPRM proposed that transit authorities that had fully
implemented the paratransit requirements of the rule would no longer
have to send in annual updates to FTA. The thinking behind this
proposal was that, once full compliance had been achieved, annual
updates, and the process required to generate them, would become an
unnecessary administrative burden. Instead, there would be a simple
certification of compliance. If, for any reason, a transit authority
slipped out of full compliance, it would have to inform FTA and file
updates until it was once again in full compliance.
    Transit agencies generally supported the proposed change, citing
the difficulty that many small providers have with annual paperwork
submissions. Some of these commenters said, however, that there should
be other means (e.g., additions to the National Transportation
Database) of monitoring and reporting data on paratransit costs and
service. Disability community commenters, on the other hand, favored
retention of the existing requirement. Some were suspicious of claims
by transit authorities that they were really in full compliance. A
common theme in these comments was that the public participation
requirements accompanying the annual update was a good opportunity for
the disability community to have input concerning service problems.
Indeed, some commenters said, public participation provisions should be
strengthened.
    Some of the comments also pointed to a statutory issue. Section
233(c)(7)(B) of the ADA provides that the Department's regulations
shall require each public entity that operates fixed route service to
submit a paratransit plan to the Secretary within 18 months after the
effective date of the section and ``on an annual basis thereafter,
submit to the Secretary, and commence implementation of, a plan for
providing [paratransit] services.'' In its original ADA rule, the
Department implemented this requirement by establishing the annual plan
update requirement.
    This requirement makes sense during the phase-in period for
paratransit service. While a transit authority is gradually building up
its paratransit service to the point where it meets all service
criteria, it is reasonable for the transit authority to send in annual
progress reports that have been developed through the public
participation process set forth in the rule. Once the transit authority
has fully met all the service criteria, however, there is no new
``progress'' to report. There is no implementation to ``commence,''
since the service required by the rule is already up and running, and
need only be continued for the transit authority to meet its ADA
paratransit obligations.
    Once the transit authority is fully meeting all service criteria
(including the criterion concerning capacity constraints), submitting
an annual certification that it is continuing to meet all these
criteria as provided in its previously-approved plan meets the letter
and intent of Sec. 223(c)(7)(B). Of course, should the transit
authority fall below full compliance with all criteria, it would need
to inform FTA and resume substantive annual updates until it was once
again in full compliance.
    In response to comments, the Department will make two modifications
to the proposed regulatory language. First, as noted above, there would
need to be a report to FTA if the transit authority fell out of
compliance. Second, we are adding a provision authorizing FTA to direct
a transit authority to conduct a public participation process and
submit a plan update if, in FTA's judgment (based, for example, on
consumer complaints about service), there is a reasonable basis for

[[Page 25414]]

concern about continuing full compliance.
    Because the regulation already requires a mechanism for continuing
public participation (see Sec. 37.137(c)), the Department is not
persuaded that the public participation process accompanying plan
updates is essential to provide public input to providers about
paratransit service. While changes to National Transit Database
reporting concerning paratransit are outside the scope of this
rulemaking, the Federal Transit Administration will consider whether
some modifications to this report to provide more data about
paratransit service are desirable.

2. Visitor Eligibility

    The NPRM requested comment on its proposal to clarify the
eligibility of visitors to use paratransit services. The proposed
change would have specified that the 21 days that transit operators
must provide service to eligible visitors was 21 days within a year
period, as opposed to 21 continuous days. The proposed regulatory text
would have read: ``A public entity is not required to provide service
to a visitor for more than 21 days per year from the date of the first
paratransit trip used by the visitor.'' (emphasis added). The
Department has decided to clarify the provision by specifying that the
maximum amount of service which transit providers must provide eligible
visitors is 21 days per calendar year. The Department will further
amend the rule to allow local providers the option of restricting the
21 days of service use to 21 continuous service days following the
first trip.
    Transit providers were split on whether visitors should be eligible
for 21 continuous days or 21 days per year. Approximately half of the
providers who commented complained of administrative difficulties
inherent in keeping track of 21 days of service spread out over an
entire year. It was also pointed out that with 21 days per year,
paratransit operators have more difficulty managing capacity because
they cannot predict demand. Other providers disagreed, reporting no
administrative burden or capacity drain from allowing visitors 21 days
per year. Capital Metro of Austin, Texas believes that 21 continuous
days of eligibility is insufficient to meet the needs of frequent
visitors, such as college students returning home on breaks, and
instead allows visitors six months of service before requiring them to
apply for local eligibility. Individuals with disabilities and advocacy
groups almost all favored 21 days per year.
    When an individual with a disability travels to another city, it
remains the Department's policy that he or she have open and ready
access to local mass transit without any need to have planned the trip
in advance. Indeed, often the traveler will be unfamiliar with the new
city and have no way to know in advance what his or her travel needs
will be. For this reason, the Department's amendment to this provision
emphasizes that in no case may a transit provider require a visitor to
apply for or be granted eligibility certification before being able to
use the provider's paratransit service as provided in Sec. 37.127.
    Given the desire commenters expressed for clarification of how the
visitor eligibility provision is intended to work, and the likelihood
that there may be many situations in which individuals (e.g., business
travelers, weekend trip visitors) will make repeat trips to a given
city during a year, the Department has decided to require that transit
authorities permit a visitor to use the service on any combination of
21 days throughout a 365-day period. For example, if Ms. Smith first
uses the service on April 1, she could use the service on April 2-6,
May 17, July 10-15, October 7, etc. until she had used the service on
21 days in the period extending through March 31 of the next calendar
year. The way that XYZ chooses to implement visitor eligibility should
be made part of its paratransit program and visitors should be provided
materials clearly explaining how XYZ's visitor policy works.

3. Vehicle Acquisition for ``Private Not Primarily Engaged'' Providers

    Section 37.101 contains the vehicle acquisition requirements for
private entities not primarily engaged in the business of transporting
people. Paragraph (d) of the section applies to private entities which
operate demand responsive systems which purchase vehicles with seating
capacity over 16. When these entities purchase such a vehicle, it must
be accessible to individuals who use wheelchairs, unless the entity can
show that when viewed in its entirety, its system provides equivalent
service to individuals with disabilities. The standard for equivalent
service is found in Sec. 37.105, to which paragraph (d) refers the
reader.
    Neither Sec. 37.101 nor the ADA has any vehicle acquisition
requirement for private entities not primarily engaged in transporting
people which operate demand responsive systems which purchase vehicles
with seating capacity of 16 or less. This has created the mistaken
impression that there are no service standards which apply to these
systems. The ADA does require private operators of demand responsive
systems to provide equivalent service to individuals with disabilities
regardless of whether or not they purchase any new vehicles. This
requirement is contained in Section 302(b)(2)(C) of the ADA and is
reflected in the Department's regulations in Sec. 37.171. Section
37.171 applies the same standard for overall equivalent service as is
found in Sec. 37.105.
    To eliminate the confusion which has resulted from these
requirements, this final rule adds a new paragraph to Sec. 37.101 which
explicitly states that private entities operating demand responsive
systems that purchase vehicles with capacity of 16 or fewer must
provide equivalent service to individuals with disabilities. The new
paragraph refers the reader to both the requirement stated in
Sec. 37.171 and the standard articulated in Sec. 37.105.

4. Personal Care Attendants

    The NPRM requested comments on the question of how to define a
personal care attendant (PCA), and whether further definition was
necessary, for the purposes of determining eligibility to ride
paratransit free while accompanying a paratransit eligible individual.
Half of all comments received on the NPRM addressed this issue.
Individuals with disabilities and advocacy groups were overwhelmingly
opposed to any attempt to further define a PCA, often expressing the
opinion that further definition would constitute an invasion of
privacy.
    Transit authorities were divided on the question, with eight
believing that there was no problem and no further action warranted,
and more than a dozen believing that something should be done. Three
transit authorities suggested registering the PCAs themselves, and
three more believed that only PCAs needed for the trip should qualify,
not those whose services were required at the destination. Several
commenters suggested that individuals who needed PCAs should register
that need as part of the application process--something that the
Appendix already allows paratransit providers to require. Three of the
transit authorities that supported requiring riders to register the
need for a PCA went further to suggest that individuals who have
registered a need for a PCA be denied service when riding alone.
    The Department has decided not to amend the regulatory text
regarding PCAs. We wish to reemphasize, however, that the existing
definition of

[[Page 25415]]

a PCA does not distinguish between PCAs whose services are required
during the paratransit ride and those required at the destination.
Limiting riders to PCAs who were required on the paratransit trip could
leave a rider unable to function at his or her destination, thereby
making the trip meaningless.
    Finally, several commenters suggested requiring those who register
as using a PCA be denied service when riding alone. The Department did
not adopt this suggestion. Riders who use a PCA for destination needs
may well have varying needs depending on the trip purposes. Requiring
these riders to be accompanied by a PCA even when they do not expect to
require assistance will create unnecessary expenses for the rider and
further burden the seating capacity of the transit provider. Other
riders may have varying levels of assistance needs over time, and
requiring these riders to either further define their needs in advance
or always travel with a PCA is unjustifiably intrusive.

5. Equivalent Facilitation

    The final substantive change proposed in the NPRM was to delete the
requirement that an entity demonstrate an inability to comply with
existing requirements as a condition of obtaining a determination of
equivalent facilitation. As explained in the NPRM, the original purpose
of the provision was to limit departures from established regulatory
standards and promote uniformity and predictability. The Department was
concerned, however, that requiring a showing of inability to comply was
having the effect of stifling innovation and discouraging the
development of new technologies that might provide equal or even
greater accessibility at a lower cost.
    The discussion of this change that appeared in the preamble of the
NPRM addressed only whether a petitioning entity should have to
demonstrate its inability to comply. A drafting error in the proposed
regulatory text created the impression that the amendment would have
gone further, eliminating other reporting requirements associated with
the petition for equivalent facilitation. The Department apologizes for
the error and wishes to note that at no time were the other
requirements considered for removal.
    Commenters were split on this proposal. All commenting transit
authorities and providers agreed with the proposal, as did a few other
commenters. Many of these commenters clearly conditioned their support
on the Department ensuring that the change did not allow any decrease
in accessibility. Members of the disability community voiced strong
dissent to the proposal. Almost all of the comments filed by
individuals with disabilities and their advocacy groups viewed the
change as a weakening of the ADA's accessibility standards and many
expressed distrust of the Department's ability to ensure legitimate
equivalence.
    Recognizing that significant costs can be associated with ADA
compliance, the Department feels that to ensure the most widespread
long-term compliance, it must allow as much flexibility as possible and
encourage the development of new, more cost effective technologies.
Accordingly, the requirement that an entity show that it is unable to
comply with current standards is being eliminated from the petition for
equivalent facilitation. Petitioning entities must continue to show
that their alternative method actually provides equal or greater
accessibility. This point protects the interests of the disability
community concerning maintaining the strength of accessibility
requirements. The other reporting requirements of the petition found in
Sec. 37.7 and Sec. 37.9 will also remain, such as demonstrating the
effectiveness of the alternative measures for compliance and
documenting the public participation used in developing the alternative
method. The Department notes that the original purpose of the
requirement, encouraging uniformity and predictability, remains an
important goal.

6. Clarification of Appendix Statement on Vehicle Lift Dimensions

    The NPRM proposed to clarify a reference to the Part 38 standards
for accessible vehicles. Appendix D to Part 37 contains explanatory
statements and guidelines for Part 37. In Appendix D, section 37.13,
the discussion of section 37.13 of the rule refers to the ``new 30'' by
48'' lift platform specifications.'' This statement was intended to
refer to the Part 38 standards for lift platforms. The reference
oversimplifies the Part 38 standard, which requires 30  x  48 inch
dimensions at a height of 2 inches above the platform base, but only
requires a width of 28.5 inches at the base itself. To eliminate the
confusion created by the reference, section 37.13 of Part 37, Appendix
D will be amended to replace the words ``new 30'' by 48'' '' with the
words ``Part 38''.

7. Typographical Errors

    The typographical errors in Secs. 37.3 and 37.11(a) will be
corrected as described in the NPRM.

Regulatory Analyses and Notices

    This final rule is not significant under Executive Order 12866. It
is significant under the Department's Regulatory Policies and
procedures, because it amends a significant rule having substantial
public interest. We expect economic impacts to be minimal, so we have
not prepared a regulatory evaluation. There are no Federalism impacts
sufficient to warrant the preparation of a Federalism assessment. The
Department certifies that the rule will not have a significant economic
impact on a substantial number of small entities.

    Issued this 7th day of March, 1996, at Washington, DC.
Federico Pena,
Secretary of Transportation.

    For the reasons set forth in the preamble, the Department proposes
to amend 49 CFR Part 37 and 49 CFR Part 38 as follows:

PART 37--[AMENDED]

    1. The authority citation for 49 CFR Part 37 is proposed to
continue to read as follows:

    Authority: Americans with Disabilities Act of 1990 (42 U.S.C.
12101-12213); 49 U.S.C. 322.

    2. The authority citation for 49 CFR Part 38 is proposed to be
revised to read as follows:

    Authority: Americans with Disabilities Act of 1990 (42 U.S.C.
12101-12213); 49 U.S.C. 322.

    3. In part 37, Sec. 37.27(b) is proposed to be revised to read as
follows:

Sec. 37. 27  Transportation for elementary and secondary education
systems.

* * * * *
    (b) The requirements of this part do not apply to the
transportation of school children to and from a private elementary or
secondary school, and its school-related activities, if the school is
providing transportation service to students with disabilities
equivalent to that provided to students without disabilities. The test
of equivalence is the same as that provided in Sec. 37.105. If the
school does not meet the requirement of this paragraph for exemption
from the requirements of this part, it is subject to the requirements
of this part for private entities not primarily engaged in transporting
people.

Sec. 37.3  [Amended]

    4. In part 37, Sec. 37.3 the definition of the term ``Designated
public transportation'' is amended by replacing

[[Page 25416]]

the word ``containing'' with the word ``continuing.''
    5. In Part 37, Sec. 37.7 is amended by revising paragraph
(b)(2)(ii) and removing and reserving (b)(2)(iii) to read as follows:

Sec. 37.7  Standards for accessible vehicles.

* * * * *
    (b) * * *
    (2) * * *
    (ii) Specific provision of part 38 of this title concerning which
the entity is seeking a determination of equivalent facilitation.
* * * * *
    6. In Part 37, Sec. 37.9 is amended by revising paragraph
(d)(2)(ii) to read as follows and removing and reserving (d)(2)(iii):

Sec. 37.9  Standards for accessible facilities.

* * * * *
    (d) * * *
    (2) * * *
    (ii) Specific provision of Appendix A to Part 37 concerning which
the entity is seeking a determination of equivalent facilitation.
* * * * *

Sec. 37.11  [Amended]

    7. In part 37, Sec. 37.11(a) is amended by replacing the words
``subpart F'' with the words ``subpart C.''
    8. In Part 37, Sec. 37.101 is amended by adding a new paragraph
(e), to read as follows:

Sec. 37.101  Purchase or lease of vehicles by private entities not
primarily engaged in the business of transporting people.


* * * * *
    (e) Demand Responsive System, Vehicle Capacity of 16 or Fewer.
Entities providing demand responsive transportation covered under this
section are not specifically required to ensure that new vehicles with
seating capacity of 16 or fewer are accessible to individuals with
wheelchairs. These entities are required to ensure that their systems,
when viewed in their entirety, meet the equivalent service requirements
of Secs. 37.171 and 37.105, regardless of whether or not the entities
purchase a new vehicle.
    9. In Part 37, Sec. 37.127(e) is revised to read as follows:

Sec. 37.127  Complementary paratransit service for visitors.

* * * * *
    (e) A public entity shall make the service to a visitor required by
this section available for any combination of 21 days during any 365-
day period beginning with the visitor's first use of the service during
such 365-day period. In no case shall the public entity require a
visitor to apply for or receive eligibility certification from the
public entity before receiving the service required by this section.
    10. In part 37, Sec. 37.131(b)(4) is revised to read as follows:

Sec. 37.131  Service criteria for complementary paratransit.

* * * * *
    (b)* * *
* * * * *
    (4) The entity may permit advance reservations to be made up to 14
days in advance of an ADA paratransit eligible individual's desired
trips. When an entity proposes to change its reservations system, it
shall comply with the public participation requirements equivalent to
those of Sec. 37.131(b) and (c).
* * * * *
    11. In Part 37, Sec. 37.135 is amended by revising paragraph (c) to
read as follows:

Sec. 37.135  Submission of paratransit plan.

* * * * *
    (c) Annual Updates. Except as provided in this paragraph, each
entity shall submit an annual update to its plan on January 26 of each
succeeding year.
    (1) If an entity has met and is continuing to meet all requirements
for complementary paratransit in Secs. 37.121-37.133 of this part, the
entity may submit to FTA an annual certification of continued
compliance in lieu of a plan update. Entities that have submitted a
joint plan under Sec. 37.141 may submit a joint certification under
this paragraph. The requirements of Secs. 37.137-37.139 do not apply
when a certification is submitted under this paragraph.
    (2) In the event of any change in circumstances that results in an
entity which has submitted a certification of continued compliance
falling short of compliance with Secs. 37.121-37.133, the entity shall
immediately notify FTA in writing of the problem. In this case, the
entity shall also file a plan update meeting the requirements of
Secs. 37.137-37.139 of this part on the next following January 26 and
in each succeeding year until the entity returns to full compliance.
    (3) An entity that has demonstrated undue financial burden to the
FTA shall file a plan update meeting the requirements of Secs. 37.137-
37.139 of this part on each January 26 until full compliance with
Secs. 37.121-37.133 is attained.
    (4) If FTA reasonably believes that an entity may not be fully
complying with all service criteria, FTA may require the entity to
provide an annual update to its plan.

Appendix D [Amended]

    12. In Part 37, Appendix D, the paragraph entitled ``Section 37.13
Effective Date for Certain Vehicle Lift Specifications'' is proposed to
be amended by replacing the words ``new 30'' by 48'''' with the words
``Part 38.''

Sec. 38.173  [Amended]

    13. In part 38, Sec. 38.173(a) is amended by adding the words
``(i.e., at a speed of no more than 20 miles per hour at any location
on their route during normal operation)'' after the words ``slow
speed.''
    14. In part 38, Sec. 38.173(d) is amended by adding the following
sentence at the end thereof, to read as follows:

Sec. 38.173  Automated guideway transit vehicles and systems.

* * * * *
    (d) * * * AGT systems whose vehicles travel at a speed of more than
20 miles per hour at any location on their route during normal
operation are covered under this paragraph rather than under paragraph
(a) of this section.

[FR Doc. 96-11935 Filed 5-20-96; 8:45 am]
BILLING CODE 4910-62-P