[Federal Register Volume 63, Number 57 (Wednesday, March 25, 1998)]
[Proposed Rules]
[Pages 14560-14571]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-7675]
[[Page 14559]]
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Part IV
Department of Transportation
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49 CFR Part 37
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Architectural and Transportation Barriers Compliance Board
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36 CFR Part 1192
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Transportation for Individuals with Disabilities; Proposed Rule
Americans with Disabilities Act Accessibility Guidelines for
Transportation Vehicles; Over-the-Road Busses; Proposed Rule
Federal Register / Vol. 63, No. 57 / Wednesday, March 25, 1998 /
Proposed Rules
[[Page 14560]]
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DEPARTMENT OF TRANSPORTATION
49 CFR Part 37
[Docket OST-1998-3648; Notice No. 98-15]
RIN 2105-ACOO
Transportation for Individuals with Disabilities
AGENCY: Department of Transportation, Office of the Secretary.
ACTION: Notice of proposed rulemaking (NPRM).
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SUMMARY: The Department is proposing regulations to require the
accessibility of new over-the-road buses (OTRBs) and to require
accessible OTRB service. The proposed rules, under the authority of the
Americans with Disabilities Act (ADA), apply both to intercity and
other fixed-route bus operators and to charter/tour operators. The
rules would ensure that passengers with disabilities could use OTRBs,
which are the last major mode of surface transportation that are not
subject to final accessibility requirements.
DATES: Comments are requested on or before May 26, 1998. Late-filed
comments will be considered to the extent practicable.
ADDRESSES: Comments should be sent, preferably in triplicate, to Docket
Clerk, Docket No. OST-1998-3648, Department of Transportation, 400 7th
Street, S.W., Room PL-401, Washington, D.C., 20590. Comments will be
available for inspection at this address from 10:00 a.m. to 5:00 p.m.,
Monday through Friday. Commenters who wish the receipt of their
comments to be acknowledged should include a stamped, self-addressed
postcard with their comments. The Docket Clerk will date-stamp the
postcard and mail it back to the commenter.
FOR FURTHER INFORMATION CONTACT: Robert C. Ashby, Deputy Assistant
General Counsel for Regulation and Enforcement, Department of
Transportation, 400 7th Street, S.W., Room 10424, Washington, D.C.,
20590. (202) 366-9306 (voice); (202) 755-7687 (TDD), or Donald
Trilling, Director, Office of Environment, Energy, and Safety, same
street address, Room 9222, (202) 366-4220.
SUPPLEMENTARY INFORMATION: For purposes of the Americans with
Disabilities Act (ADA), an OTRB is ``a bus characterized by an elevated
passenger deck located over a baggage compartment'' (section 301(5)).
The Department's ADA regulation (49 CFR 37.3) repeats this definition
without change. OTRBs are a familiar type of bus used by Greyhound and
other fixed-route intercity bus carriers as well as charter and tour
operators.
As provided by the ADA, the Department issued limited interim OTRB
regulations with its 1991 final ADA rules. The statute originally
provided for the Department to issue final regulations by mid-1994,
which would go into effect in July 1996 for larger operators and July
1997 for smaller operators. The Department fell behind the statutory
schedule. In recognition of this fact, Congress amended the ADA in 1995
to put the final rules into effect two years from the date of their
issuance (three years for small entities). The Secretary of
Transportation has made issuance of final OTRB rules a priority, and
the Department has established a schedule calling for publication of a
final rule by September 15, 1998. On this schedule, the rules would
begin to apply to larger entities in October 2000 and to smaller
entities in October 2001.
Regulatory Activity
In October 1993, the Department issued an advance notice of
proposed rulemaking (ANPRM) that asked a variety of questions about the
scope of accessibility requirements, interim service requirements,
operational and fleet composition issues, lavatories and rest stops,
training, and economic issues concerning OTRBs. Also in the autumn of
1993, the Department convened a public meeting at which DOT staff
discussed OTRB issues with representatives of the disability community
and OTRB industry. On various occasions, former Secretary of
Transportation Federico Pena, Secretary of Transportation Rodney Slater
and other DOT officials have met with disability community and bus
industry groups to discuss the issues involved.
It is clear from the responses to the ANPRM, the public meeting,
and comments in meetings that the bus industry and disability community
hold quite different views of the course the Department should follow
in these regulations. The disability community believes that all new
OTRBs should be accessible. The bus industry believes that a ``service-
based'' approach, involving such elements as a small pool of accessible
buses, alternate means of access (e.g., station-based lifts and
scalamobils), and on-call service. In support of its position, the
disability community cites the accessibility requirements of other
transportation provisions of the ADA, which uniformly require new
vehicles to be accessible, and gaps and inequalities in service that
they believe the industry approach would create. In support of its
position, the industry cites the higher costs of purchasing and
operating accessible vehicles, their projections that demand for
accessible service would be low, the economic problems of the intercity
bus industry, and their view that their approach is more cost-
effective.
Studies
There are two principal studies of over-the-road bus accessibility
that the Department has considered in preparing this NPRM. The first
was a Congressionally-mandated study prepared in 1993 by the Office of
Technology Assessment (OTA), a small Federal agency (Access to Over-
the--road Buses for Persons with Disabilities, U.S. Congress, Office of
Technology Assessment, OTA-SET-547 (Washington, D.C., U.S. Government
Printing Office, May 1993)). The second was prepared for Greyhound by
Nathan Associates, a consulting firm.
On potential ridership, the OTA study presents (admittedly crude)
estimates that, if OTRB trip rates for disabled passengers are about
the same as for the general passenger population, there would be
180,000 annual trips on fixed-route OTRB service by wheelchairs (plus
another 200,000 by people using other mobility aids). Greyhound, using
the experience of limited accessible OTRB operations in Massachusetts,
Colorado, and Ontario, projects an annual demand of 13,600 trips for
wheelchair passengers for Greyhound.
The OTA study takes the view that transferring a wheelchair user
out of his or her own wheelchair has safety and effectiveness problems,
and therefore concludes that, to meet the requirements of the ADA,
boarding assistance options must allow an individual to remain in his
or her own wheelchair. This could include not only lift-equipped buses,
but also station-based or portable lifts in combination with a door and
securement location for an individual's wheelchair. The Greyhound study
takes the position that, in addition to 75-bus pool of accessible
buses, the use of boarding assistance methods that involve transfers
from wheelchair to boarding device to vehicle seat (e.g., scalamobils
or station-based lifts in combination with boarding chairs) would
provide acceptable access for mobility-impaired passengers.
The ADA does not authorize the Department to require accessible
restrooms on buses if doing so will result in the loss of seating
capacity. All current accessible restroom units would result in a loss
of seating capacity. The OTA study recognizes this fact, but
[[Page 14561]]
suggests that, in the absence of an accessible restroom, there must be
a way for mobility-impaired passengers to use rest stops on a
sufficiently frequent basis (OTA suggests every 1.5-2 hours). The
Greyhound study finds that requiring accessible restrooms would more
than double the costs of accessibility, compared to lift-equipped buses
without accessible restrooms. The Greyhound study does not address the
issue of rest stops, though previous industry comments have suggested
that requiring additional rest stops could be costly and might disrupt
schedules.
The OTA study focused on the costs and benefits of OTRB
transportation alone. The Greyhound study also makes comparisons with
other modes (e.g., intercity rail and air travel), in conjunction with
Greyhound's argument that it should not have relatively higher costs
than other modes in making its system accessible.
The foregoing discussion does not comprehensively summarize the two
studies, but it does illustrate the very different views of OTRB
accessibility, and its costs and benefits, that they take. The
Department's regulatory evaluation discusses the issues addressed by
these studies in greater detail.
Scope of the Department's Legal Discretion
Statutory Provisions
The Department's OTRB rulemaking implements several provisions of
Title III of the Americans with Disabilities Act (ADA). Section 304(a)
sets forth the general rule that--
no individual shall be discriminated against on the basis of
disability in the full and equal enjoyment of specified
transportation services provided by a private entity that is
primarily engaged in the business of transporting people and whose
operations affect commerce.
Section 304(b)(1) lists four types of conduct that constitute
discrimination in general for all entities covered by Section 304. The
first, in Sec. 304(b)(1) is--
the imposition or application * * * of eligibility criteria that
screen out or tend to screen out an individual with a disability or
any class of individuals with disabilities from fully enjoying the
specified public transportation services provided by the entity,
unless such criteria can be shown to be necessary for the provision
of the services being offered.
Section 304(b)(2) adds the following to the list of actions the failure
to do which constitutes discrimination:
(A) mak[ing] reasonable modifications consistent with those
required under section 302(b)(2)(A)(ii): 1
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\1\ Discrimination includes ``a failure to make reasonable
modifications in policies, practices, or procedures, when such
modifications are necessary to afford goods services, facilities,
privileges, advantages, or accommodations, unless the entity can
demonstrate that making such modifications would fundamentally alter
the nature of such goods, services, facilities, privileges,
advantages or accommodations.''
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(B) Provid[ing] auxiliary aids and services consistent with the
requirements of section 302(b)(2)(A)(iii); 2 and
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\2\ Discrimination includes ``a failure to take such steps as
may be necessary to ensure that no individual with a disability is
excluded, denied services, segregated, or otherwise treated
differently than other individuals because of the absence of
auxiliary aids and services, unless the entity can demonstrate that
taking such steps would fundamentally alter the nature of the good,
service, facility, privilege, advantage, or accommodation being
offered or would result in an undue burden.''
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(C) remov[ing] barriers consistent with the requirements of
section 302(b)(2)(A) 3 and with the requirements of
section 303(a)(2). 4
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\3\ Discrimination includes ``a failure to remove architectural
barriers, and communication barriers that are structural in nature,
in existing facilities, and transportation barriers in existing
vehicles* * *used by an establishment for transporting individuals
(not including barriers that can be removed only through the
retrofitting of vehicles* * *by the installation of a* * *lift),
where such removal is readily achievable; and where an entity can
demonstrate the removal of [such] a barrier* * *is not readily
achievable, a failure to makes goods, services, privileges,
advantages, or accommodations, available through alternative methods
if such methods are readily achievable.''
\4\ This section requires making alterations to existing
facilities ``readily accessible to and usable by'' individuals with
disabilities, to the maximum extent feasible.
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Section 304(b)(3) begins the statute's specific treatment of vehicle
accessibility requirements. It states that discrimination includes--
the purchase or lease by such an entity of a new vehicle (other than
* * * an over-the-road bus) * * * that is not readily accessible to
and usable by individuals with disabilities, including individuals
who use wheelchairs; except that the new vehicle need not be readily
accessible to and usable by such individuals if the vehicle is used
solely in a demand responsive system and the entity can demonstrate
that the system, when viewed in its entirety, provides a level of
service to such individuals equivalent to the level of service
provided to the general public. (emphasis added).
As the underlined language indicates, the requirements of this
paragraph do not cover OTRBs. Instead, Section 304(b)(4)(A) provides
that discrimination includes ``the purchase or lease by such entity of
an over-the-road bus which does not comply with the regulations issued
under section 306(a)(2); and * * * any other failure of such entity to
comply with such regulations * * *.''
Section 306(a)(2)(A) required the Department to issue interim
regulations concerning over-the-road bus service. These rules, which
the Department published as 49 CFR 37.169 (56 FR 45640-41; September 6,
1991), had to require operators to ``provide accessibility to such
bus'' for individuals with disabilities, except that structural changes
to make buses wheelchair-accessible and the purchase of boarding
assistance devices could not be required. The Department views this
provision as prohibiting the interim rules from requiring lifts on
buses or the acquisition of particular devices to provide accessibility
for wheelchair users. The interim rules consequently required boarding
assistance without specifying the means. The interim rules also require
OTRB operators to provide on-board storage of passengers' wheelchairs.
Section 304(a)(2)(B) concerns the Department's ``final
requirement,'' which is to be issued after the Department studies the
interim regulations and the OTA study. Section 306)(a)(2)(B)(ii)
directs the Department to
issue new regulations * * * to carry out section 304(b)(4) and
302(b)(2)(D)(ii) 5 that require, taking into account the
purposes of the study under section 305 and recommendations
resulting from such study, each private entity which uses an over-
the-road bus to provide accessibility to such bus to individuals
with disabilities, including individuals who use wheelchairs.
\5\ This section provides that discrimination includes, for
private entities not primarily in the business of transporting
people, ``the purchase or lease of an over-the-road-bus which does
not comply with the regulations issued under section 306(a)(2) * * *
and any other failure by such entity to comply with such
regulations.''
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This section provides that, not later than one year after the date of
the OTA study, the Department must issue these final regulations. As
noted above, the Department fell well behind this schedule. Originally,
the ADA provided that the Department's final regulations would take
effect
with respect to small providers of transportation (as defined by the
Secretary), 7 years after the date the enactment of this Act [i.e.,
July 26, 1997]; and * * * with respect to other providers of
transportation, 6 years after such date of enactment [i.e., July 26,
1996]. (section 304(a)(2)(B)(iii)).
In recognition of the fact that the Department did not meet the
statutory schedule for issuing the final rules, Congress amended
section 306(a)(2)(B)(3)(iii) to put the final rules into effect two
years from their effective date (three years for small entities).
The ADA provides that the Department's final rules may not require
[[Page 14562]]
``the installation of accessible restrooms in over-the-road buses if
such installation would result if such installation would result in a
loss of seating capacity.'' (section 304(a)(2)(C). To the best of the
Department's knowledge, all existing accessible restroom units would
result in the loss of seating capacity, so this provision effectively
bars the Department from requiring accessible restrooms in buses.
The ADA specifies in some detail what the OTA study was intended to
accomplish. Section 305(a) said that the OTA study was to determine--
(1) The access needs of individuals with disabilities to over-
the road buses and to over-the-road bus service; and (2) the most
cost-effective methods for providing access to over-the-road buses
and over-the-road bus service, particularly for individuals who use
wheelchairs, through all forms of boarding options.
Section 305(b) told OTA to analyze several factors:
(1) The anticipated demand by individuals with disabilities for
accessible over-the-road buses and over-the-road bus service.
(2) The degree to which such buses and service, including any
service required under sections 304(b)(2) and 306(a)(2), are readily
accessible to and usable by individuals with disabilities.
(3) The effectiveness of various methods of providing
accessibility to such buses and service to individuals with
disabilities.
(4) The cost of providing accessible over-the-road buses and bus
service to individuals with disabilities, including consideration of
recent technological and cost-saving developments in equipment and
devices.
(5) Possible design changes in over-the-road buses that could
enhance accessibility, including the installation of accessible rest
rooms which do not result in a loss of seating capacity.
(6) The impact of accessibility requirements on the continuation
of over-the-road bus service, with particular consideration of the
impact of such requirements on such service to rural communities.
Legislative History
The Senate and House versions of the bill that became the ADA
contained similar, but somewhat different, provisions concerning OTRBs.
The Senate bill provided that it was discrimination to purchase or
lease a new OTRB ``that is not readily accessible to and usable by
individuals with disabilities.'' (S. Rept. 101-116 at 73). This term
meant ``able to be entered into and exited from safely and effectively
used by individuals with disabilities, including individuals who use
wheelchairs.'' (Id.) The Senate Committee on Labor and Human Resources
then provided more specific guidance on what constituted a vehicle that
was readily accessible and usable by individuals with disabilities:
Lifts, ramps, and fold-up seats or other wheelchair spaces with
appropriate securement devices are among the current features
necessary to make transit vehicles readily accessible to and usable
by individuals with disabilities. The requirement that a vehicle is
to be readily accessible obviously entails that each vehicle is to
have some spaces for individuals who use wheelchairs or three-
wheeled mobility aids; how many spaces are to be made available for
wheelchairs is, however, a determination that depends on various
factors, including the number of vehicles in the fleet, seat vacancy
rates, and usage by people with disabilities * * * [C]onsistent with
these general factors, the determination of how many spaces must be
available should be flexible and generally left up to the provider;
provided that at least some spaces on each vehicle are accessible.
(Id. at 73-74)
Senator Hatch, in a separate statement of additional views,
criticized the provision of the Senate bill requiring new OTRBs to be
``readily accessible to and usable by'' individuals with disabilities
as imposing a requirement to purchase lift-equipped buses, which he
said would impose overly onerous costs on the private bus industry. He
believed that no such requirement should be imposed by Congress until
the results of the OTA study were available. (Id. at 102-105.)
The House Committee on Public Works and Transportation began its
discussion of OTRB requirements by addressing the relationship between
the general nondiscrimination requirements of Sec. 304 and the vehicle-
specific requirements of the section:
The examples of discrimination contained in section 304(b) are
intended to address situations that are not covered in the specific
vehicle and system requirements * * * The general rule contained in
paragraph (a) and the examples of discrimination contained in
paragraph (b) are not intended to override the specific requirements
contained in the sections referenced in the previous sentence. For
example, an individual with a disability could not make a successful
claim under section 304(a) that he or she had been discriminated
against in the full and equal enjoyment of public transportation
services on the grounds that an over-the-road bus was not wheelchair
lift-equipped, if a lift was not required under 304(b) or 306(a)(2).
(H. Rept. 101-485, Pt. 1, at 39)
Commenting on the regulations to be issued by DOT, the Committee added:
Section 304(b)(4) requires over-the-road buses to comply with
the regulations issued under section 306(a)(2) and makes it
discrimination to purchase or lease an over-the-road-bus which does
not meet those requirements. Two sets of regulations will be issued
by the Department of Transportation under section 306(a)(2) which
include vehicle specific requirements for over-the-road buses. (Id.
at 40.)
The first of these two regulations is the interim rule which the
Department has already issued as 49 CFR 37.169. ``While these interim
requirements are in effect,'' the Committee said, ``it will not be
considered discrimination for a private entity to purchase or lease an
over-the-road bus which is not wheelchair lift-equipped or to which a
boarding chair/ramp is not provided to board such bus.'' (Id. at 43.)
With respect to the second regulation, the Committee said the
following:
Section 306(a)(2)(B) requires the Secretary of Transportation to
review the OTA study and issue final regulations not later than one
year after the submission of the study to the Secretary. The
regulations shall require, taking into account the purposes of the
study under section 305 and any recommendations resulting from such
study, each private entity which uses an over-the-road bus to
provide transportation to individuals to provide accessibility to
such bus to individuals with disabilities. The regulations will be
effective 7 years after date of enactment for small providers, as
defined by the Secretary, and 6 years after date of enactment for
other providers. The Secretary may define small providers using
current ICC class definitions. The extra year for compliance for
these providers acknowledges the increased burden that
implementation of some accessibility requirements could have on
operators with relatively small fleets. Section 306(a)(2)(C) states
that no regulations may require the installation of accessible
restrooms in over-the-road buses if such installation would result
in a loss of seating capacity. The term ``seating capacity'' has the
same meaning discussed under section 305--a reduction in the number
of seats in which passengers can ride comfortably. (Id. )
Statements of additional views by Congressman Hammerschmidt and several
colleagues, and Congressman Shuster and several colleagues, praised the
House version of the OTRB language as representing a constructive
compromise acceptable to all interested parties, including the
disability community and the OTRB industry. (Id. at 60, 64-65.)
The Conference Committee report described the construction of the
final version of these provisions the bill as follows:
The Senate bill specifies that over-the-road buses must be
readily accessible and usable by individuals with disabilities
within 7 years for small providers and 6 years for other providers *
* * The House amendment deletes the specific obligation to make each
bus ``readily accessible to and usable by'' individuals with
disabilities at the end of the 6 or 7 year period * * * Instead, the
House amendment specifies that the purchase of new over-the-road
buses must be made in accordance with regulations issued
[[Page 14563]]
by the Secretary of Transportation * * *. The Senate recedes. (H.
Rept. 101-596 at 79.)
The Congressional reports also discussed the purposes of the OTA study.
The House Committee made the following statements:
Section 305(a) directs the Office of Technology Assessment (OTA)
to conduct a study to determine (1) the access needs of individuals
with disabilities to over-the-road bus service; and (2) the most-
cost effective methods for providing access to over-the-road buses
and over-the-road bus service to individuals with disabilities
through all forms of boarding options. During its hearings on the
legislation, the Committee heard conflicting testimony on the cost
and reliability of wheelchair lifts or other boarding assistance
devices with regard to their use on over-the-road buses. Therefore,
before mandating these or any other boarding options in this Act, a
thorough study of the access needs of individuals with disabilities
to these buses and the cost-effectiveness of different methods of
providing such access is required by the Act. Section 305(b)
specifies which issues must be analyzed by the study, but is not
intended to be all-inclusive. The analysis required by the
legislation includes a review of accessibility issues relating to
vehicle-specific aspects of over-the-road buses, as well as to
system-wide aspects of over-the-road bus service. Both aspects of
over-the-road bus accessibility are included so that neither is
favored over the other in the organization of the study. (H. Rept.
101-485, Pt. q, at 40-41.)
With respect to different boarding assistance options, the Committee
directed OTA to examine--
the effectiveness of various methods of providing accessibility to
such buses and service to individuals with disabilities. All types
of methods (including the use of boarding chairs, ramps, wheelchair
lifts, and other boarding assistance devices) which may, or may not,
involve the physical lifting of a boarding assistance device should
be analyzed in terms of their effectiveness. (Id. at 41.)
Consistent with the Senate bill's provision requiring OTRBs to be
``readily accessible to and usable by'' individuals with disabilities,
the Senate Committee's comments on the purposes of the study had a
different emphasis than those of the House Committee:
Section 305 of the legislation directs the Architectural and
Transportation Barriers Compliance Board to undertake a study to
determine the access needs of individuals with disabilities to over-
the road buses readily accessible to and usable by individuals with
disabilities. In determining the most cost-effective methods for
making over-the-road buses readily accessible to and usable by
persons with disabilities, particularly individuals who use
wheelchairs, the legislation specifies that the study should analyze
the cost of providing accessibility, recent technological and cost
saving developments in equipment and devices, and possible design
changes. Thus, the Committee is interested in having the study
include a review of current technology such as lifts that enable
persons with mobility impairments, particularly those individuals
who use wheelchairs, to get on and off buses without being carried;
alternative designs to the current lifts; as well as alternative
technologies and modifications to the design of buses that may be
developed that will also enable such individuals to get on and off
over-the-road buses without being carried. (S. Rept. 101-116 at 74.)
In the Conference Committee, as noted above, the Senate receded, and
the House provision became part of the final bill. The Conference
Committee report said that--
the purpose of the study is revised to include a determination of
the access needs of individuals with disabilities, particularly
individuals who use wheelchairs, through all forms of boarding
options. The study must analyze, among other things, the
effectiveness of various methods of providing access to such buses
and service to individuals with disabilities. (H. Rept. 101-596 at
79.)
OTA Legal Analysis
In the study mandated by section 305 of the ADA, the OTA set forth
a view of the OTRB requirements of the statute that leaves the
Department relatively little regulatory discretion. OTA states that
``[s]ection 304(b)(4)(A) clarifies that the exclusion of OTRBs from
304(b)(3) is with respect to the compliance date and specific
standards, not from the requirement for accessibility.'' (OTA study at
6.) Unlike situations in which the concept of ``undue burden'' applies,
OTA asserts, ``transportation services must meet accessibility
standards regardless of cost considerations.'' (Id.) Moreover, ``OTA
could find no language in the ADA stating or implying that OTRBs can be
held to a lesser standard than other modes of transportation, nor does
the ADA give guidance on promulgating such a lesser standard.'' (Id.)
The section 305 requirement for the OTA study is not ``an exemption or
retreat from the policies and goals of the ADA,'' and section 306
requires that ``DOT's regulations must apply specified previous
sections of the ADA to OTRBs and must require OTRB operators to provide
accessible service.'' (Id. at 6-7.)
OTA defines an ``accessible OTRB'' as one having a level change
mechanism (on-board or station-based) that allows individuals to remain
in their wheelchairs, a sufficiently wide door to accommodate persons
with mobility impairments, two wheelchair securement locations, a means
to communicate with persons with sensory or cognitive disabilities, and
provisions for the use of accessible restroom facilities. (Id. at 25.)
OTA asserts that--
[f]or fixed-route transportation systems, the ADA requires private
operators to install accessibility technologies when purchasing or
leasing a vehicle. Eventually, all scheduled fixed-route service
will use accessible vehicles. In the case of privately operated
OTRBs, there is some debate about whether DOT has the latitude to
promulgate regulations under a different, perhaps lesser, standard
of accessibility. However, the OTA expects that the same standard of
accessibility will be applied to all private operators of public
transportation within the jurisdiction of the ADA * * *Therefore,
OTA anticipates that ADA's standard of accessible service for fixed-
route private operators of other public transportation systems
extends to fixed route service using OTRBs. In other words, to meet
the requirements of the ADA, all OTRBs leased or purchased for use
in fixed route service must be accessible.
Charter and tour services meet the definition of demand-
responsive systems. For demand-responsive transportation systems
(other than those using OTRBs or automobiles), the ADA has required
each private operator * * *,[w]hen purchasing a new vehicle,* * * to
purchase an accessible vehicle, unless the operator can show that
the system, when viewed in its entirety, provides the same level of
service to individuals with disabilities as to those without. As
with fixed-route service, OTA anticipates that the ADA's standard of
accessibility for private operators of other demand-responsive
transportation systems applies to demand-responsive services using
OTRBs * * * In other words, to meet the requirements of the ADA,
private operators of demand-responsive OTRB service must eventually
have access to enough accessible OTRBs to meet the demand. (Id. at
25-26, emphasis in original.)
OTA also takes the view that--
the ADA does not allow operators to provide accessible service
through the use of alternative vehicles or through reservations
systems used solely for persons with disabilities. For example, a
tour operator could not provide accessible service with an
accessible van that transports passengers with disabilities while
the rest of the tour patrons ride in an OTRB. (Id. at 26.)
Views of Commenters to the DOT ANPRM
Bus industry commenters argued that DOT has considerable
flexibility in fashioning OTRB requirements. For example, Greyhound
argued that the ADA tells DOT to consider ``all forms of boarding
options'' and the ``access needs of individuals,'' rather than binding
DOT to a requirement for all new accessible buses. It also asserted
that the portions of section 305 that direct OTA to study the economic
consequences of accessibility requirements, the anticipated demand for
accessible service, and the cost-
[[Page 14564]]
effectiveness of means of providing accessibility imply that DOT could
rely on such factors to devise a requirement other than requiring all
new buses to have lifts. Greyhound also pointed to the distinction
between the section 306 requirement of ``accessibility to such bus''
and what it regards as the more stringent requirement, elsewhere in the
ADA, for making facilities or services ``readily accessible to and
usable by'' individuals with disabilities. The American Bus Association
expressed similar views.
Disability community commenters took the opposite position. For
example, the Paralyzed Veterans of America/Consortium of Citizens with
Disabilities (PVA/CCD) comments said that the ``accessibility to such
bus'' term in section 306 demonstrated that ``Congress plainly
indicated its preference for judging accessibility by a vehicle
standard rather than a service equivalency standard.'' The Department's
OTRB regulations should be consistent with those for other ``private
primarily engaged'' operators except where the OTRB statutory language
differs. Moreover, OTA's findings and conclusions should be
``presumptively determinative'' of the Department's regulatory
decisions. PVA/CCD also assert that OTRB requirements are properly
viewed as applying to used as well as new OTRBs. The Disability Rights
Education and Defense Fund (DREDF) made similar arguments, stating that
Congress mandated that ``each individual OTRB should be accessible,''
rather than allowing a generalized service standard. In addition, DREDF
supported, with respect to service in the interim before all buses are
accessible, having a boarding chair on each bus and opposed any advance
notice requirements.
Analysis
The Department takes the position that it has substantial legal
discretion to devise regulations to implement the OTRB requirements of
the ADA. DOT could require that OTRB operators meet standards like
those applied to other ``private, primarily engaged'' transportation
providers by section 304(b)(3), but the Department is not required to
do so. The Department may consider both vehicle-based and service-based
approaches to OTRB accessibility, and may consider other factors such
as cost. However, the Department is also not mandated by the statute or
its legislative history to choose the least costly, or arguably most
cost-effective, approach to OTRB access.
1. Separate Statutory Requirements
The first reason for this conclusion is that Congress explicitly
separated the requirements for most ``private primarily engaged''
transportation providers, set forth in section 304(b)(3), from those
for OTRB operators, set forth in section 304(b)(4). The former
requirement tells fixed route operators to purchase or lease accessible
new (but not used) vehicles and tells demand responsive operators to
purchase or lease accessible new (but not used) vehicles or ensure that
they can provide equivalent service to individuals with disabilities.
The latter requirement is simply that the purchase or lease of OTRBs
(with no distinction stated between new and used buses) must comply
with the regulations issued by DOT under section 306(a)(2).
Had Congress wished to mandate that OTRB requirements be identical
with those applying to other ``private primarily engaged''
transportation providers, Congress could simply have included OTRBs
under the requirements of section 304(b)(3), perhaps with an effective
date delayed until 1996/97. Instead, Congress specifically said that
section 304(b)(3) requirements apply to vehicles ``other than * * * an
over-the-road bus'' and assigned to the Department responsibility for
devising OTRB requirements.
2. Different Accessibility Language
The second reason is that Congress intentionally chose different
language to express the accessibility requirements for OTRB operators
and other ``private primarily engaged'' providers, respectively. As
noted above, section 306(a)(2) provides that the Department's
regulations must require ``each private entity which uses an over-the-
road bus to provide accessibility to such bus to individuals with
disabilities, including individuals who use wheelchairs.'' Disability
group comments asserted that the ``accessibility to such bus'' language
should be understood to require that each OTRB must be an accessible
bus (e.g., have the accessibility features identified by OTA).
While this language does lend some support to the idea that
Congress intended buses to be accessible, it differs from language
Congress used elsewhere in the ADA (e.g., section 304(b)(3)), where
Congress required that a vehicle be ``readily accessible to and usable
by'' individuals with disabilities. This latter phrase clearly refers
to a vehicle that has accessibility features of the kind cited by OTA
or required by 49 CFR Part 38. By using a different term,
``accessibility to such bus,'' Congress at least left open the
possibility of accessibility being provided by other means.
3. Intent of OTA Study
The third reason for the Department's conclusion concerning its
discretion flows from an analysis of the ADA's language and legislative
history concerning the OTA report. Section 306(a)(2)(B)(ii) tells the
Department to consider not only the recommendations of the OTA study
but also its ``purposes.'' The House legislative history said that one
important purpose, to be achieved before mandating any particular
boarding options, was to study ``the access needs of individuals with
disabilities to these buses and the cost-effectiveness of different
methods of providing such access.'' (H. Rept. 101-485, Pt. 1, at 40-
41). Specifically, the study was to review both ``vehicle-specific
aspects of over-the-road buses * * * [and] system-wide aspects of over-
the-road bus service. Both aspects * * * are included so that neither
is favored over the other in the organization of the study.'' (Id.) All
types of methods (including boarding chairs, lifts, ramps, and others)
were to be considered. While the Senate legislative history had a
stronger (though not exclusive) focus on the use of lift technology,
the Conference Committee language states that all forms of boarding
options and access to buses and bus service were to be analyzed by the
study.
Since Congress intended OTA to study and make recommendations
concerning these matters, it is fair to infer that DOT, mandated to
take the purposes and recommendations of the study into account, is
entitled to consider the same factors and options in its rulemaking.
The same point applies with respect to other matters that Congress told
OTA to study, such as the demand for accessible OTRB service, the cost
of providing accessible OTRBs and OTRB service, and the impact of
accessibility requirements on the continuation of OTRB service,
particularly in rural areas. Nothing in the statute or the legislative
history requires that any of these factors be emphasized to the
exclusion of others.
Policy Basis for Proposed Rule
We view the way that the Department uses its considerable legal
discretion to shape this proposed regulation as being primarily a
policy decision about what is necessary to ensure that individuals with
disabilities, including wheelchair users, can realize the rights to
nondiscriminatory treatment guaranteed them by the ADA and can
effectively
[[Page 14565]]
use OTRB buses and service. In the Department's view, it is necessary,
to achieve these goals, to ensure that passengers who use wheelchairs
can ride, board, and disembark from OTRBs while using their own
wheelchairs.
Approaches not permitting passengers to remain in their own
wheelchairs involve a minimum of four transfers on each trip (not
counting rest or intermediate stops)--from wheelchair to boarding chair
or device, and from boarding chair or device to vehicle seat, at the
start of the trip, with the process reversed at the end of the trip.
This increases the probability of discomfort, indignity, and injury,
compared to a trip that does not involve transfers.
Moreover, wheelchairs used by disabled passengers are often quite
different from one another, reflecting the individual needs of their
users. Vehicle seats are uniform, and consequently do not provide the
same comfort and support as the passenger's own wheelchair. This can
have health and safety implications for mobility-impaired passengers.
Many mobility-impaired passengers use electric wheelchairs. Many
such chairs are large and heavy. Others are of the ``scooter'' type. It
is likely that most electric wheelchairs will not fit into bus luggage
compartments. Based on experience in the airline industry, the process
of stowing and retrieving electric wheelchairs carries a significant
risk of damage to the expensive devices. Bus service to passengers who
use electric wheelchairs cannot be effective if transportation for the
wheelchairs is unavailable.
Because accessible lavatories reduce seating capacity, the
Department will not propose requiring them in OTRBs. This creates fewer
problems for passengers if the buses are accessible. If passengers are
seated in their own wheelchairs in lift-equipped buses, they can
readily get on and off the bus at rest stops. If not, then four more
transfers, and potential schedule disruptions, would be involved in
allowing wheelchair users to take advantage of rest stops.
The bus industry has proposed meeting these objectives primarily
through having a number of accessible OTRBs in a pool, available to
disabled passengers who make reservations 48 hours in advance (similar
to Option 3, summarized below). The industry asserts that such an
arrangement could provide lift-equipped bus service to all passengers
needing it, in a less costly and more cost-effective fashion (i.e.,
with a considerably lower cost per stimulated trip). The Department's
regulatory assessment, summarized below, displays the Department's
estimates of the cost differences among options. The industry also
asserts that this kind of service could become effective more rapidly
than a requirement to make all new buses accessible, since it would
take 12 years to move to full fleet accessibility.
Pooling and advance reservation systems have some merit, as they
allow carriers to make more efficient use of the accessible buses they
have to provide transportation to passengers with disabilities. Indeed,
the proposed rule contemplates charter/tour operators using pooling
arrangements. It also contemplates using pooling arrangements in fixed
route service as an interim measure to provide accessible
transportation in the years before fleets become fully accessible.
With respect to fixed route services, however, the drawback to
pooling/advance reservation systems is one of equal treatment. This is
a matter of significance in a rule implementing a nondiscrimination
statute. While reservation service is available to passengers for fixed
route service in many instances, fixed route OTRB passengers generally
are not required to make reservations. Requiring disabled passengers to
make reservations on a permanent basis falls short of providing equal
conditions of service for disabled passengers, who may want to travel
on short notice as much as other passengers. It also increases the
probability of administrative error interfering with passengers' travel
plans. While we understand the view of the industry that it is
preferable, for cost-related reasons, to rely on on-call service with
48-hour advance reservations required, we find it difficult to
reconcile this requirement with the ADA's nondiscrimination mandate.
Requiring all new buses to be lift-equipped is consistent with the
requirements for all other modes of transportation under the ADA (e.g.,
all new fixed-route transit buses; all new rapid, commuter, and
intercity rail cars; and all new full-size fixed-route private buses
other than OTRBs are already required to be accessible). We believe
that there is considerable merit in proposing requirements that
parallel the requirements of other portions of the ADA.
The Department is not persuaded, however, that the intermodal cost
comparisons put forward in the Greyhound study are germane. The ADA
imposes accessibility requirements on each mode independently (e.g.,
urban mass transit bus and rail, intercity rail) without making any
statement that relative burdens somehow must be equalized across very
different types of transportation. In particular, Greyhound's
comparison between intercity bus and airline service overlooks the fact
that FAA safety regulations concerning seats and seat anchorages
preclude disabled passengers from remaining in their own wheelchairs
aboard aircraft. The Department's Air Carrier Access Act rules involve
assisted boarding and transfers out of passengers' own wheelchairs
because safety requirements peculiar to aviation leave no better
accessibility option available. Where better options are available, as
they are for OTRBs, it is difficult to argue that they should not be
used.
The Department has paid careful attention to the cost and demand
data presented in the OTA and Greyhound studies. There is no question
that requiring new accessible buses is a costlier option than the
pooling/transfer alternatives suggested by the Greyhound study (though
the costs of the proposed provisions, as estimated by the regulatory
assessment, do not appear to impose an undue financial burden on the
industry). In the context of the ADA, however, cost determinations,
standing alone, are not necessarily determinative. The statute does not
provide that the Department is compelled to meet the needs of disabled
passengers in ``a cost-effective manner.'' Cost-effectiveness is one of
the considerations that OTA was directed to study, and which the
Department is taking into account, but the statute does not mandate
that cost-effectiveness considerations trump all others in determining
how to make bus travel accessible.
We are concerned that the Greyhound study appears to confuse cost-
effectiveness with profitability (i.e., it identifies as cost-effective
only those options that result in a net surplus to the company). The
study also bases its conclusions about cost-effectiveness on very low
demand estimates drawn from a few, scattered systems that require
advance notice and do not offer connectivity to the national
transportation network that Greyhound provides other customers. While
OTA demand estimates may err on the side of generosity, the Greyhound
estimates may err on the side of conservatism.
The Department will continue to consider costs as it decides, after
reviewing comments, what to require in a final rule. The Department
remains open to considering options other than the one it is proposing.
However, the Department believes, at this time, that the following
provisions would most appropriately implement the
[[Page 14566]]
nondiscrimination requirements of the ADA.
Description of the Proposed Rule
The NPRM would create a new subpart of the Department's ADA rule
(49 CFR Part 37, Subpart F). Proposed Sec. 37.111 would restate the
statutory compliance dates of two years for larger carriers and three
years for smaller carriers. If the final regulation is published on the
Department's target date of September 15, 1998, then the rule would
begin to apply to larger carriers in October 2000 and to smaller
carriers in October 2001. We propose to distinguish between larger and
smaller carriers based on the class into which the carrier falls. Class
I carriers (i.e., passenger carriers with gross annual transportation
operating revenues of $5 million or more, as provided in Surface
Transportation Board regulations found in 49 CFR 1249.3, including the
``deflator'' provision of those rules) would be viewed as larger
carriers. Everyone else would be regarded as a smaller carrier. We
would add an item to the definitions section of the rule incorporating
this distinction.
Section 37.112 states the basic requirement of the proposed rule.
Beginning on the dates mentioned above, fixed route carriers (``private
entities primarily engaged in providing transportation to people'')
would have to ensure that new OTRBs they receive are accessible. By an
accessible bus, we mean one that meets the OTRB requirements we are
proposing to add to 49 CFR part 38. The Part 38 requirements are
identical to the proposed OTRB guidelines being promulgated by the
Access Board, and include on-board lifts and wheelchair securement
locations. It should be noted that, while these guidelines include
information about accessible restrooms, the Department is not proposing
to require accessible restrooms on OTRBs, since existing accessible
restrooms would result in a loss of seating capacity.
We call commenters' attention to the fact that all new OTRBs
received by entities after the applicability date would have to be
accessible. In the 1990 ADA rule for mass transit, the Department
provided that all new transit buses ordered after the effective date
had to be accessible. We propose to handle this issue differently in
this rule because OTRB operators have 2-3 years from the effective date
of a final regulation before accessibility requirements fully apply.
The transit rules began to apply 30 days from the issuance of the rule.
Unlike the transit operators, OTRB operators will have plenty of time
to place orders for accessible vehicles well in advance of the
application date.
As in the case of other operators covered by the ADA ``private
primarily'' rules, OTRB operators would not have to ensure that used
buses were accessible. Nor would they be required to retrofit vehicles.
While the Department has the legal discretion to impose such a
requirement with respect to OTRBs, requiring either the purchase of
accessible used vehicles (which will not be available in large numbers
for some years) or retrofitting (a costly procedure on a bus which has
consumed part of its expected useful life) would be too costly and
unnecessarily inconsistent with the ADA's requirements in similar
contexts. However, as in other parts of the ADA rule, proposed
Sec. 37.118 would require remanufactured buses to be made accessible.
Demand-responsive carriers (e.g., charter/tour operators) who
obtain new buses would also have to obtain accessible buses, unless and
until they fully meet the fleet and service requirements of
Secs. 37.114-37.115, discussed below. This parallels the accessible
vehicle or equivalent service scheme of other ADA requirements for
demand-responsive service.
Proposed Sec. 37.113 is a fleet accessibility requirement for fixed
route operators. It would require each large operator to ensure that,
within 6 years from the applicability date of the rule (e.g., October
2006), half its OTRBs were accessible. All its OTRBs would have to be
accessible within 12 years (e.g., October 2012). The 6- and 12-year
time frames are based on information in the Greyhound study that
Greyhound replaces \1/12\ of its fleet per year. (For cost analysis
purposes, the Department is using an 11-year fleet replacement period
for the entire industry.) The Department seeks comment on the best
number of years to include for this purpose (e.g., would 4 and 10 years
be better, given the 2-3 years carriers have available before the
effective date of the rule?). In addition to being consistent with
existing industry practice, this provision is intended to provide a
disincentive to carriers obtaining large numbers of inaccessible buses
in the time between now and the applicability date of the rules or to
deferring purchases of accessible OTRBs until much later in the
process, either of which would postpone full fleet accessibility.
One alternative that has been suggested to a fleet accessibility
time frame is a requirement that companies retrofit any inaccessible
OTRB obtained between the effective date of the final rule and the
applicability date to the company (e.g., between October 1998 and
October 2000 for large operators). This would also be a disincentive to
purchasing large numbers of inaccessible OTRBs in the interim, but
would potentially be more costly and would not address the issue of
deferred purchases of accessible vehicles. We seek comment on this and
other alternatives.
The NPRM proposes an important exception to the fleet accessibility
rule. If small operators did not obtain enough new buses to replace 50
percent of their fleet in 6 years or all of their fleet in 12, they
would be excused from this requirement. This exception is proposed in
light of the practice of many smaller operators of obtaining most or
all of their vehicles used. Absent the proposed exception, these
companies would have to buy new buses or retrofit used buses to meet
the fleet accessibility requirement. The exception will allow these
operators to continue their existing procurement practices, thereby
reducing potential economic burdens on small entities. Their fleets
will become accessible in later years when their sources of used buses
have fleets consisting of accessible vehicles. In the meantime, they
would have to meet interim service requirements (see proposed
Sec. 37.116).
Demand-responsive operators would also have a fleet accessibility
requirement (proposed Sec. 37.114). These operators would have to
ensure that 10 percent of their fleets are accessible within two years
of the applicability date of the rule to them. The Department seeks
comment both on the fleet accessibility percentage and the time frame.
Again, there would be an exception for small operators who did not
obtain enough new buses in the two year period to replace 10 percent of
their fleets.
Proposed Sec. 37.115 sets forth a service requirement for demand-
responsive operators. Beginning two years after the applicability date
of the rule to an entity, the entity would have to ensure that a
disabled passenger who asked for service in an accessible OTRB would
get it. The operator could ask for 48 hours' advance notice. Advance
notice is less onerous in a charter/tour situation, for which most
passengers book seats in advance. For example, suppose a small
Baltimore charter/tour operator has 20 buses. By October 2005, the
operator may well have two accessible OTRBs in its fleet. When the
operator is running a trip to Atlantic City, a mobility-impaired
passenger who calls 48 hours in advance will have to receive service
[[Page 14567]]
in an accessible OTRB. If the operator does not have an accessible
OTRB, or one of its own is not available at the time , the operator
would obtain an accessible OTRB from a pool or a sharing arrangement
with other operators. The Department seeks comment on whether it is
realistic to assume that pool arrangements are practicable,
particularly for small operators.
Section 37.116 concerns interim service, which operators would have
to provide in the years before they had fully implemented all their
accessibility requirements. The section would work as follows. From the
effective date of the rule (e.g., October 1998) until the applicability
date of accessibility requirements to operators (e.g., October 2000 or
2001, depending on the size of the operator), the existing interim
service requirements of Sec. 37.169 would continue to apply to
operators. In the two-year period beginning with that applicability
date (e.g., October 2000-October 2002 for a large operator), operators
would to continue to comply with existing Sec. 37.169, unless they had
already complied with all of its permanent accessibility requirements.
Section 37.169 would be phased out for large operators four years after
the effective date of this rule and for small operators five years
after the effective date of this rule (e.g., October 2002 or 2003,
respectively).
By two years from the applicability date of the rule (e.g., October
2002 for large operators) demand-responsive operators would be required
to meet their permanent requirements of 10 percent accessible buses in
their fleets plus providing on-call accessible bus service on 48 hours'
advance notice. Since it will take fixed-route operators longer to
acquire enough buses to have a fully accessible fleet, they would have
to meet a continuing interim service requirement. Beginning in 2002,
large operators would have to provide on-call accessible bus service on
48 hours' advance notice until such time as their fleets became fully
accessible. The requirements for small operators would be the same, but
they would start a year later.
So far, the rule has focused on private entities primarily in the
business of transporting people. Proposed section 37.117 concerns
private entities not primarily in this business. The rules parallel
other ADA transportation requirements. Operators providing fixed route
service, when they get new buses, must get accessible buses
(paralleling the requirements for ``private not primarilies'' in the
ADA and DOT's regulations, this requirement applies to all buses an
operator obtains, not just new buses). Demand responsive operators,
when they get new buses, must either get accessible buses or ensure
that they can provide equivalent service. ``Private not primarilies''
would not have fleet accessibility or interim requirements.
Proposed Sec. 37.119 concerns the issue of intermediate and rest
stops. This issue arises on both fixed route and demand-responsive
service. The NPRM proposes that, when an accessible OTRB makes a rest
or intermediate stop, a mobility-impaired passenger will have a chance
to take advantage of the stop the same as other passengers, through the
use of the lift to leave and re-enter the bus. The situation is more
problematic when an inaccessible OTRB is involved. We propose that a
mobility-impaired passenger will have the chance to use the rest stop,
with the driver's assistance in leaving and re-entering the vehicle, to
the extent feasible, without unreasonably delaying the trip. That is,
if getting a portable lift out of the baggage compartment, doing four
transfers, using the facilities, and reversing the process takes so
long that the schedule is seriously disrupted, the operator could
decline to provide the service. This clearly presents problems to
disabled passengers, especially given the absence of on-board
accessible restrooms, which is one of the reasons we believe that
accessible buses are a superior long-term solution.
We seek comments on two matters concerning rest stops on trips
provided by inaccessible buses. First, should the ability of an
operator to decline to provide rest stop service to a passenger on the
basis of delay apply only to express trips, where the effects of delay
would be most detrimental? Second, how long a delay should be regarded
as unreasonable, such that an operator could decline to provide the
service to passengers with disabilities?
Proposed Sec. 37.120 would make applicable to OTRB operators the
training, service and lift maintenance requirements that apply to other
forms of bus service. The Department seeks comments whether any
provisions should be added, deleted, or changed. With respect to
training, the training requirements section of the Department's
existing ADA rule (49 CFR Sec. 37.173) requires all transportation
providers to ensure that their personnel are trained to proficiency to
operate vehicles and equipment safely and properly and safely and
properly assist passengers with disabilities. This requirement would
apply to carriers using OTRBs with respect to all equipment and
services provided for under the proposed rule. The Department's cost
estimates for this NPRM include the costs of this training. The
Department seeks comment on whether any additional or more specific
training or service requirements should be added concerning OTRBs. For
example, should there be any requirements concerning how OTRB operators
should provide service when the number of wheelchair users seek to
travel on a particular trip exceeds the number of wheelchair locations
on the bus?
The Access Board and the Department elsewhere in this issue of the
Federal Register are also publishing proposed accessibility guidelines
for OTRBs. They would become part of 49 CFR part 38, the Department's
accessibility rules that accompany the DOT ADA rule. One issue on which
we seek comment is whether, if a bus meets the requirements for
wheelchair locations and an entry door accessible to wheelchair users
but does not have an on-board lift, it is appropriate to regard the bus
as accessible if it will always be used only for trips between stations
that are equipped with station-based lifts that will accommodate
passengers' own wheelchairs.
Regulatory Analyses and Notices
This is a significant regulatory proposal under Executive Order
12866 and the Department's Regulatory Policies and Procedures, both
because of its cost impacts on the industry and the strong public
interest in accessibility matters. The Department has prepared a
regulatory evaluation to accompany the NPRM, which we have placed in
the docket for the rulemaking. The Office of Management and Budget
(OMB) has reviewed this NPRM.
In considering what to propose in this NPRM, the Department
considered three basic options for fixed route service. These options
are discussed in detail in the regulatory evaluation. The following are
summaries of these options and their overall costs. The costs for each
option include the costs for the proposed accessibility requirements
for demand-responsive systems, but all the variance among the options
is accounted for by differences among the fixed route options.
1. Accessible OTRBs--All new OTRBs must be accessible. Fleets of
large fixed route carriers must be 50% accessible within 6 years and
100% accessible within 12 years. Used buses do not have to be
accessible. Small carriers do not have fleet accessibility
requirements. Since many small carriers buy primarily used buses,
this means that their fleets would not become accessible until
accessible used buses became widely
[[Page 14568]]
available in the market. Interim service that makes accessible OTRBs
available on 48 hours' notice is required beginning after two years.
The estimated total cost of this option ranges from $349.7 to $470.9
million over 22 years (net present value over 22 years is $203.6-
$261.4 million). The difference between the high and low ends of the
range is determined principally by whether operators choose to
obtain less or more expensive lifts.
2. Station-Based Lifts Only--This option is similar to the
following option, except that there is no accessible OTRB or on-call
service requirement. It provides less service than other options and
has a lower cost. The estimated total cost is $62.2 million over 22
years (net present value over 22 years is $22.7 million).
3. Station-Based Lifts with On-call Accessible Buses--Service
would be provided through station-based lifts or other appropriate
technology for 50% of a carrier's boardings within 2 years and 80%
within 7 years. Within two years, 15% of a large carrier's fleet
would have to be accessible. Beginning in two years, carriers would
have to provide service in accessible buses, on 48 hours' notice, to
passengers who could not be served adequately by a station-based-
lift system. To make such a system work for small intercity
carriers, especially those who did not yet have accessible buses of
their own, there would have to be pooling arrangements among
carriers. The estimated total cost is $152.9 million over 22 years
(net present value over 22 years is $92.5 million).
The following table displays the annual aggregate costs (discounted
and annualized) of each of the three fixed route options, expressed in
millions of year 2000 dollars. Again, the costs for each option include
the costs for the proposed accessibility requirements for demand-
responsive systems, but all the variance among the options is accounted
for by differences among the fixed route options.
----------------------------------------------------------------------------------------------------------------
Option 1 (high) 1 (low) 2 3 (low)
----------------------------------------------------------------------------------------------------------------
Gross Costs................................................. 45.20 39.07 16.23 18.72
Increased Revenues.......................................... 19.90 19.90 11.00 14.11
Net Costs................................................... 25.30 19.17 5.23 4.61
----------------------------------------------------------------------------------------------------------------
A number of points of explanation are needed to understand this table.
``Gross costs'' include equipment (e.g., lifts on buses) and training,
as well as the costs of seating capacity lost when wheelchair users
travel on bus trips that are within three persons of being filled to
capacity. ``Increased revenues'' include the revenue generated by
stimulated trips taken by disabled passengers and their friends or
family. ``Net costs'' are the difference between the two. It should
also be noted that the costs stated for Options 2 and 3 cover only
intercity fixed route services and do not include the local fixed route
services that are included under Option 1.
As noted elsewhere in this preamble, there is a great deal of
uncertainty about the amount of demand that would be stimulated by
accessible OTRB service. We believe that Option 2 would generate
significantly fewer trips than Option 1. For purposes of our analysis,
we have assumed that Option 2 would generate only 25 percent as many
trips as would be realized with a system of all lift-equipped buses,
and we have projected the revenues accordingly. We believe that it is
even more difficult to predict--or even assume--that Option 3 would
generate a particular percentage of the demand stimulated by a system
of all life-equipped buses. Consequently, the increased revenue figure
found in the table for Option 3 ($13.85 million) represents the
stimulated demand (about 70 percent of demand generated if all buses
are lift-equipped) that would be necessary for increased revenue to
break even with fixed route accessibility costs. We do not know whether
Option 3 would succeed in obtaining this percentage of demand generated
by a system of all lift-equipped buses, however.
Another way of comparing costs is on the basis of cost per
stimulated trip. The following table displays, in millions of year 2000
dollars, the gross and net annualized costs for additional each trip
generated by each of the options. The notes about the previous table
apply to this table as well.
----------------------------------------------------------------------------------------------------------------
Option 1 (high) 1 (low) 2 3 (low)
----------------------------------------------------------------------------------------------------------------
Gross Cost.................................................. 53.49 46.24 27.92 27.81
Net Cost.................................................... 29.95 23.55 8.99 6.84
----------------------------------------------------------------------------------------------------------------
It should be noted that, if the costs of accessibility are spread over
all trips made by OTRB passengers, rather than only over stimulated
trips, the per trip costs are much smaller, in the area of $.35 per
trip.
The NPRM proposes the first option, since it is does the best job
of providing meaningful accessibility and avoiding discriminatory
treatment of passengers with disabilities. In the Department's view,
the costs of the first option, while higher than the other two options,
are not so great as to impose undue or unreasonable burdens on bus
operators. The Department will consider comments concerning all the
options, and others which commenters may wish to suggest, as we work
toward a final rule. In addition, in the period between the issuance of
the final rule and the compliance dates for carriers, the Department
will be willing to consider suggestions for modification of whatever
option is chosen if it appears that fully satisfactory, but different,
arrangements are in place to meet the travel needs of passengers with
disabilities in a nondiscriminatory manner.
In terms of the Regulatory Flexibility Act, this proposal is likely
to have a significant economic impact on a substantial number of small
entities. We have incorporated a Regulatory Flexibility Analysis into
the regulatory evaluation. Briefly, we would point out that the
additional year's phase-in time provided by statute and the small
entity exception to the fleet accessibility requirement should reduce
the burdens of the proposed rule on small operators.
In order to assist the Department's analysis of the costs and
benefits of various options for accessible OTRB service at the final
rule stage, particularly--though not solely--for small entities, the
Department requests that commenters provide information on the
following questions:
(1) What is the level of ridership for local fixed route and
small intercity operators? For charter/tour operators? What are the
average fares for these services?
(2) How much price elasticity is there for bus purchases by
small operators? That is, if an accessible bus costs a given amount
more than an inaccessible bus, how many fewer buses are small
operators likely to acquire?
[[Page 14569]]
(3) How much price elasticity is there for small operators with
respect to fares? That is, will acquisition of accessible buses
cause small operators to raise their fares a given amount? If so,
what effect will this have on ridership?
(4) Is there additional information about maintenance and repair
costs to small operators for used accessible OTRBs they obtain that
the Department should take into account?
(5) Is there information about patronage, load factors, and
average fares, as well as information on the number of buses in
charter/tour service, for each part of the OTRB industry?
(6) What is the proportion of new vs. used buses acquired by
companies in each part of the OTRB industry?
(7) How would the proposed bus pooling arrangements work, either
in demand responsive service as this NPRM proposes or in fixed-route
service as in Option 3 above? Where would the buses come from? Would
small carriers receive buses on reasonable terms and in a timely
fashion?
(8) Is the experience of public mass transit service with
respect to usage of buses by persons with mobility impairments
relevant to projecting stimulated demand for over-the-road bus
service, or is the analogy too tenuous to support any inferences
from one mode to another? The Federal Transit Administration does
not receive reports on bus usage by people with mobility
impairments; is it available from other sources?
(9) Is there any data from which it would be possible to draw
inferences about the demand that would be stimulated by Option 3 (15
percent of fleets consisting of accessible buses, with 48-hour on-
call service) vs. Option 1 (all new fixed route buses accessible)?
Stated another way, is there a basis for estimating how much
additional demand would be generated under Option 1, compared to
Option 3?
We note that the class of small operators (i.e., all who are not
Class I carriers) does not directly reference the Small Business
Administration (SBA) size standards that include most or all OTRB
operators (i.e., major group 41 in the SBA size standards found in 13
CFR Part 121). The standards are substantively very close to one
another. The break points between small and large operators for the
Class I and the SBA definitions are, respectively, $5.3 million and $5
million in annual revenues. The Department seeks comment on these
alternative standards.
This NPRM does not contain information collection requirements
requiring OMB review under the Paperwork Reduction Act.
List of Subjects in 49 CFR Part 37
Buildings and facilities, Buses, Civil rights, Individuals with
disabilities, Mass transportation, Railroads, Transportation.
Issued This 19th day of March 1998, at Washington, DC.
Rodney E. Slater,
Secretary of Transportation.
For the reasons set forth in the preamble, 49 CFR Part 37 is
proposed to be amended as follows:
PART 37--TRANSPORTATION SERVICES FOR INDIVIDUALS WITH DISABILITIES
(ADA)
1. The authority for Part 37 is proposed to be revised to read as
follows:
Authority: 42 U.S.C. 12101-12213; 49 U.S.C. 322.
2. Section 37.3 of Part 37 is proposed to be amended by adding the
following definition, placed in alphabetical order with the existing
definitions, to read as follows:
Sec. 37.3 Definitions.
* * * * *
Small operator means, in the context of over-the-road buses
(OTRBs), a private entity primarily in the business of transporting
people that is not a Class I motor carrier (i.e., a carrier having
average annual gross transportation operating revenues of $5.3 million
or more from passenger motor carrier operations, as provided in
Department of Transportation regulations, 49 CFR 1249.3).
* * * * *
3. Subparts F and G are proposed to be redesignated as subparts G
and H.
4. A new Subpart F, consisting of Secs. 37.111 through 37.120, is
proposed to be added to part 37, to read as follows:
Subpart F--Over-the-Road Buses (OTRBs)
Sec.
37.111 Application.
37.112 Purchase or lease of new OTRBs by private entities primarily
in the business of transporting people.
37.113 Fleet accessibility requirement for OTRB fixed route
systems.
37.114 Fleet accessibility requirement for OTRB demand-responsive
systems.
37.115 Service requirement for OTRB demand-responsive systems.
37.116 Interim service requirements.
37.117 Purchase or lease of OTRBs by private entities not primarily
in the business of transporting people.
37.118 Remanufactured OTRBs.
37.119 Intermediate and rest stops.
37.120 Other service requirements.
Subpart F--Over-the-Road Buses (OTRBs)
Sec. 37.111 Application.
This subpart applies to all private entities that operate OTRBs
beginning [a date two years after the effective date of this subpart]
or, in the case of small operators, beginning [a date three years after
the effective date of this subpart].
Sec. 37.112 Purchase or lease of new OTRBs by private entities
primarily in the business of transporting people.
The following requirements apply to private entities that are
primarily in the business of transporting people, whose operations
affect commerce, and that operate OTRBs, with respect to buses
delivered to them on or after the date on which this subpart applies to
them:
(a) Fixed route systems. If the entity operates a fixed route
system, and purchases or leases a new OTRB, it shall ensure that the
vehicle is readily accessible to and usable by individuals with
disabilities, including individuals who use wheelchairs.
(b) Demand responsive systems. If an entity operates a demand
responsive system, and purchases or leases a new OTRB, it shall ensure
that the vehicle is readily accessible to and usable by individuals
with disabilities, including individuals who use wheelchairs, unless
the system fully meets the requirements of Secs. 37.114 and 37.115.
Sec. 37.113 Fleet accessibility requirement for OTRB fixed route
systems.
Each private entity primarily in the business of transporting
people, whose operations affect commerce, and that provides fixed-route
OTRB service shall ensure that--
(a) By a date 6 years from the date on which this subpart applies
to the entity, no less than 50 percent of the buses in its fleet with
which it provides fixed route service are readily accessible to and
usable by individuals with disabilities, including individuals who use
wheelchairs.
(b) By a date 12 years from the date on which this subpart applies
to the entity, 100 percent of the buses in its fleet with which it
provides fixed route service are readily accessible to and usable by
individuals with disabilities, including individuals who use
wheelchairs.
(c) Exception for small operators: A small operator that does not
purchase enough new OTRBs to replace 50 percent of its fleet by a date
6 years from the date on which this subpart applies to the operator or
100 percent of its fleet by a date 12 years from the date on which this
subpart applies to the operator is excused from meeting the
requirements of paragraphs (a) and (b), respectively, of this section
by those dates.
Sec. 37.114 Fleet accessibility requirement for OTRB demand-responsive
systems.
(a) Each private entity primarily in the business of transporting
people, whose
[[Page 14570]]
operations affect commerce, and that provides demand-responsive OTRB
service shall ensure that, by a date 2 years from the date on which
this subpart applies to the entity, no less than 10% of the buses in
its fleet with which it provides demand responsive service are readily
accessible to and usable by individuals with disabilities, including
individuals who use wheelchairs.
(b) Exception for small operators: A small operator that does not
purchase enough new buses to replace 10 percent of its fleet by a date
2 years from the date on which this subpart applies to the operator is
excused from meeting the requirements of paragraph (a) of this section
by that date.
Sec. 37.115 Service requirement for OTRB demand-responsive systems
Each private entity primarily in the business of transporting
people, whose operations affect commerce, and that provides demand-
responsive OTRB service shall ensure that, by a date 2 years from date
on which the subpart applies to the entity, any individual with a
disability that requests service in an accessible OTRB receives such
service. The entity may require up to 48 hours' advance notice to
provide this service. If the individual with a disability does not
provide the advance notice the entity requires, the entity shall
nevertheless provide the service if it can do so by making a reasonable
effort.
Sec. 37.116 Interim service requirements
(a) Until 100 percent of the fleet of an entity providing fixed
route service is composed of accessible OTRBs, the entity shall meet
the following interim service requirements:
(1) By a date 2 years from the date on which this subpart applies
to the entity, ensure any individual with a disability that requests
service in an accessible OTRB receives such service. The entity may
require up to 48 hours' advance notice to provide this service. If the
individual with a disability does not provide the advance notice the
entity requires, the entity shall nevertheless provide the service if
it can do so by making a reasonable effort. If the trip on which the
person with a disability wishes to travel is already provided by an
accessible bus, the entity has met this requirement.
(2) Before a date 2 years from the date on which this subpart
applies to the entity, an entity which is unable to provide the service
specified in paragraph (a) of this section shall continue to comply
with the requirements of Sec. 37.169.
(b) Before a date 2 years from the date on which this subpart
applies to the entity, an entity providing demand responsive service
which is unable to provide the service specified in Sec. 37.115 shall
meet the requirements of Sec. 37.169.
Sec. 37.117 Purchase or lease of OTRBs by private entities not
primarily in the business of transporting people.
This section applies to all purchases or leases of vehicles by
private entities which are not primarily engaged in the business of
transporting people, with respect to buses delivered to them on or
after the date on which this subpart begins to apply to them.
(a) Fixed route systems. If the entity operates a fixed route
system and purchases or leases an OTRB for use on the system, it shall
ensure that the vehicle is readily accessible to and usable by
individuals with disabilities, including individuals who use
wheelchairs.
(b) Demand responsive systems. If the entity operates a demand
responsive system, and purchases or leases an OTRB for use on the
system, it shall ensure that the vehicle is readily accessible to and
usable by individuals with disabilities, including individuals who use
wheelchairs, unless the system, when viewed in its entirety, meets the
standard for equivalent service of Sec. 37.105.
Sec. 37.118 Remanufactured OTRBs.
(a) This section applies to any private entity operating OTRBs
which takes one of the following actions:
(1) On or after the date on which this subpart applies to the
entity, it remanufactures an OTRB so as to extend its useful life for
five years or more or makes a solicitation for such remanufacturing; or
(2) Purchases or leases an OTRB which has been remanufactured so as
to extend its useful life for five years or more, where the purchase or
lease occurs after the date on which this subpart applies to the entity
and during the period in which the useful life of the vehicle is
extended.
(b) Vehicles acquired through the actions listed in paragraph (a)
of this section shall, to the maximum extent feasible, be readily
accessible to and usable by individuals with disabilities, including
individuals who use wheelchairs.
(c) For purposes of this section, it shall be considered feasible
to remanufacture an OTRB so as to be readily accessible to and usable
by individuals with disabilities, including individuals who use
wheelchairs, unless an engineering analysis demonstrates that including
accessibility features required by this part would have a significant
adverse effect on the structural integrity of the vehicle.
Sec. 37.119 Intermediate and rest stops.
(a) Whenever an accessible OTRB makes an intermediate or rest stop,
a passenger with a disability, including an individual using a
wheelchair, shall be permitted to leave and return to the bus on the
same basis as other passengers. The driver shall operate the lift and
provide assistance with securement as needed.
(b) Whenever an inaccessible OTRB makes an intermediate or rest
stop, a passenger with a disability, including an individual using a
wheelchair, shall be permitted to leave and return to the bus on the
same basis as other passengers to the extent feasible. The driver or
other operator personnel shall provide the assistance specified in
Sec. 37.116(a)(2). The entity is not required to unreasonably delay the
bus in order to provide this service.
Sec. 37.120 Other service requirements.
(a) OTRB operators shall comply with the requirements of
Secs. 37.161, 37.165-37.167, and 37.173.
(b) The following additional requirements apply to the maintenance
of lifts on OTRBs:
(1) The entity shall establish a system of regular and frequent
maintenance checks of lifts sufficient to determine if they are
operative.
(2) The entity shall ensure that vehicle operators report to the
entity, by the most immediate means available, any failure of a lift to
operate in service.
(3) Except as provided in paragraph (c) of this section, when a
lift is discovered to be inoperative, the entity shall take the vehicle
out of service before the beginning of the vehicle's next trip and
ensure that the lift is repaired before the vehicle returns to service.
(c) If there is no other vehicle available to take the place of an
OTRB with an inoperable lift, such that taking the vehicle out of
service before its next trip will reduce the transportation service the
entity is able to provide, the entity may keep the vehicle in service
with an inoperable lift for no more than five days from the day on
which the lift is discovered to be inoperative.
5. A new paragraph (g) is proposed to be added to Sec. 37.169, to
read as follows:
Sec. 37.169 Interim requirements for over-the-road bus service
operated by private entities.
* * * * *
[[Page 14571]]
(g) This section shall cease to apply to small operators of over-
the-road buses, as defined in Sec. 37.3, on [a date five years from the
effective date of this paragraph], and shall cease to apply to other
operators of over-the-road buses on [a date four years from the
effective date of this paragraph]
[FR Doc. 98-7675 Filed 3-20-98; 11:24 am]
BILLING CODE 4910-62-P