[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]



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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  

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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