[Federal Register Volume 63, Number 187 (Monday, September 28, 1998)]
[Rules and Regulations]
[Pages 51670-51694]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-25421]



[[Page 51669]]

_______________________________________________________________________

Part III

Department of Transportation
Office of the Secretary



49 CFR Parts 37



Transportation for Individuals With Disabilities; Final Rule

Architectural and Transportation Barriers Compliance Board



36 CFR Part 1192



49 CFR Part 38



Americans With Disabilities Act Accessibility Guidelines for 
Transportation Vehicles; Over-the-Road Buses; Joint Final Rule

  Federal Register / Vol. 63, No. 187 / Monday, September 28, 1998 / 
Rules and Regulations  

[[Page 51670]]



DEPARTMENT OF TRANSPORTATION

49 CFR Part 37

[Docket OST-98-3648]
RIN 2105-ACOO


Transportation for Individuals With Disabilities

AGENCY: Office of the Secretary, DOT.

ACTION: Final rule; request for comments.

-----------------------------------------------------------------------

SUMMARY: The Department is amending its Americans with Disabilities Act 
(ADA) regulations to require the accessibility of new over-the-road 
buses (OTRBs) and to require accessible OTRB service. The new rule 
applies both to intercity and other fixed-route bus operators and to 
demand-responsive (i.e., charter and tour) operators. The rules require 
operators to ensure that passengers with disabilities can use OTRBs. In 
connection with the forthcoming Office of Management and Budget (OMB) 
review of information collection requirements, the Department is 
requesting comment on the information collection requirements section 
of the final rule.

DATES: This rule is effective October 28, 1998. Comments on the 
information collection provisions of Sec. 37.213 are requested on or 
before [90 days from December 28, 1998], but late-filed comments will 
be considered to the extent practicable. Comments are not requested on 
any other portion of the rule.

ADDRESSES: Comments should be sent, preferably in triplicate, to Docket 
Clerk, Docket No., 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), 
[email protected] (e-mail); or Donald Trilling, Director, Office of 
Environment, Energy, and Safety, same street address, Room 10305H, 
(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'' (Sec. 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). Secretary of Transportation 
Rodney Slater made issuance of OTRBs a Departmental priority, 
committing the Department to issuing a proposed rule in March 1998 and 
a final rule in September 1998. The Department issued its proposed rule 
on March 25, 1998 (63 FR 14560). With this September 1998 publication 
of the final rule, its provisions will begin to apply to large entities 
in October 2000 and to small entities in October 2001.

Previous 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 was clear from responses to the ANPRM, the public meeting, and 
written comments that the bus industry and disability community had 
quite different views of the course the Department should follow in 
these regulations. The disability community believed that all new OTRBs 
should be accessible. The bus industry advocated a so-called ``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 cited 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 cited 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, assertions that bus companies would cut rural and other 
marginal routes in response to accessibility requirements, and their 
view that their approach is more cost-effective.
    The Department's NPRM proposed that all new OTRBs used in fixed-
route service had to be accessible. The NPRM did not propose to require 
retrofit of existing buses or the acquisition of accessible used buses. 
Large fixed-route OTRB operators would be required to have 50 percent 
of their fleets accessible within 6 years, and 100 percent of their 
fleets accessible within 12 years, of the date on which the rule began 
to apply to them. Small fixed-route operators could be excused from 
these fleet accessibility deadlines if they had not acquired enough new 
buses in 6 or 12 years to replace 50 or 100 percent of their fleets.
    Under the NPRM, demand-responsive operators would have to have 10 
percent of their fleets accessible within two years of the application 
date of the rules. All demand-responsive operators would have to make 
an accessible bus available to a passenger who requested it. They could 
ask for 48 hours' advance notice. When any operator using an accessible 
bus made a rest stop, it would have to permit individuals who need to 
use the lift to get on and off the bus to use the rest stop. Operators 
who were not using an accessible bus would have to provide boarding 
assistance for rest stop purposes if such assistance did not create an 
unreasonable delay.
    A joint Access Board/DOT rulemaking proposed standards for 
accessible buses. Under this proposal, an accessible bus would have to 
have a lift and wheelchair securement locations, among other features. 
Only a bus that accommodated passengers riding in their own wheelchairs 
was viewed as accessible.
    The Department received over 400 comments on the NPRM. In general, 
comments from the disability

[[Page 51671]]

community supported the NPRM, though commenters wanted to shorten the 
fleet accessibility timetable and to strengthen the requirements 
concerning rest stops. Comments from the bus industry generally opposed 
the NPRM, saying that it was too costly and insufficiently cost-
effective.

Principal Issues: Comments and Responses

Transporting Passengers in Their Own Wheelchairs

    The NPRM, and the DOT/Access Board proposal for accessible bus 
standard, proposed that wheelchair users should be able to ride in 
their own mobility aids. As the Department explained in the NPRM 
preamble:

    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.

    Disability community commenters unanimously supported this proposed 
requirement, pointing to the inconvenience, indignity, and increased 
risk of injury resulting from transfers as reasons. Hand-carrying, even 
in boarding chairs, is unacceptable, many commenters said. Some 
comments mentioned instances where passengers had been dropped, or 
wheelchairs been damaged, in the course of manual boarding assistance 
efforts. Many commenters also noted the likely unavailability of other 
alternatives, such as station-based lifts or extra personnel needed for 
boarding chair assistance, at stops in small towns or rural areas. (It 
should be noted that no disability community commenters shared the view 
of a bus industry commenter who thought that a bus seat was a more 
comfortable place for a wheelchair user to ride than his or her own 
wheelchair.)
    The response of the bus industry to this aspect of the proposal was 
ambivalent. On one hand, industry commenters stated firmly that 
operators could meet the transportation needs of individuals with 
disabilities through a ``service-based approach'' that would make 
accessible buses (i.e., lift-equipped buses in which passengers could 
ride in their own wheelchairs) available to passengers on a 48-hour 
advance notice basis. (Greyhound recently announced that, as it had 
previously proposed, it would provide 80 accessible buses on this 
basis.) Sharing agreements among operators (``pooling'') would ensure 
that such buses would be available, they said. Many operators also 
referred to service they had provided successfully to wheelchair users 
in accessible buses. Industry commenters also cited approvingly a 
Canadian program that would provide accessible buses to passengers on 
an advance-notice basis. It was clear from these comments that the 
industry is convinced that providing service to wheelchair users riding 
in their own wheelchairs is a viable option, as long as it is organized 
along the ``service-based'' lines they propose. The industry's comments 
to this effect said nothing about safety problems companies anticipated 
encountering in implementing their own proposals.
    On the other hand, some industry commenters questioned the 
advisability of allowing passengers to ride in their own wheelchairs. 
First, commenters said, DOT failed to consider the safety implications 
of placing wheelchairs on OTRBs. The comments suggested that doing so 
could pose a safety risk to other passengers. Second, commenters said 
that it was unfair to require OTRBs to be accessible when less 
accessibility was allegedly required in other modes (e.g., airlines, 
where passengers transfer into aircraft seats) or when other modes 
where passengers are required to be able to travel in their own 
wheelchairs received government grants (e.g., mass transit, intercity 
rail). More detailed summaries of these two lines of argument follow.
a. Safety
    Industry commenters raising the safety issue made several points. 
First, unlike accessible transit buses, which assumedly travel at lower 
city speeds, OTRBs operate at highway speeds, increasing the risks to 
wheelchair users and other passengers if wheelchairs are not adequately 
secured. Second, the OTA report suggested that further review of 
wheelchair transportation safety was needed. Third, DOT should study 
crash forces in OTRB crashes so that proper securement standards could 
be developed and should study the crashworthiness of the variety of 
wheelchair designs in use, before requiring OTRB accessibility. Fourth, 
for safety-related reasons, DOT does not permit airline passengers to 
travel in their own wheelchairs, which makes it unfair to assume that 
it is safe for passengers to travel in their own wheelchairs on OTRBs. 
Fifth, the ADA and the DOT act require the Department to resolve these 
safety issues before proceeding to a final rule. One industry 
association attached a statement from a former National Highway Traffic 
Safety Administration (NHTSA) official, Mr. William Boehly, elaborating 
on some of these arguments.
b. Intermodal Unfairness
    Industry comments assert that no other transportation mode has to 
meet a standard requiring a wheelchair lift in every vehicle with only 
a minimal Federal subsidy. They cite Federal grants for Amtrak and mass 
transit, which help to pay for accessibility requirements. They also 
argue that airlines do not have to buy lifts and that DOT has exempted 
airports with less than 10,000 enplanements from accessibility 
requirements. Provisions of the DOT Act and the ADA, these commenters 
add, require greater equity among the relative burdens accessibility 
requirements impose on carriers in various modes.

DOT Response--Safety Issues

a. What is the ADA Standard for Considering Safety Issues?
    Under the ADA, if an agency is to limit the accessibility of 
programs, facilities, or services to individuals with disabilities, it 
must have evidence of a ``direct threat'' to the safety of others. This 
standard is cited in bus industry comments (see Boehly statement, p.3). 
However, industry commenters appear not to understand fully this 
standard or its implications for this rulemaking. The concept of 
``direct threat'' is the following, as explained in the regulations of 
the Department of Justice (28 CFR 36.208):

    (b) Direct threat means a significant risk to the health or 
safety of others that cannot be eliminated by a modification of 
policies, practices, or procedures, or by the provision of auxiliary 
aids or services.
    (c) In determining whether an individual poses a direct threat 
to the health or safety of others, a public accommodation must make 
an individualized assessment, based on reasonable judgment that 
relies on current medical knowledge or on the best available

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objective evidence, to ascertain: the nature, duration, and severity 
of the risk; the probability that the potential injury will actually 
occur; and whether reasonable modifications of policies, practices, 
or procedures will mitigate the risk.

    This standard is designed to prevent the exclusion of persons with 
disabilities from services based on stereotype or speculation, as 
distinct from actual risk. It is meant to be a very strict standard. 
(See 56 FR 35560-35561; July 26, 1991). General concerns about the 
possibility of risk, however sincerely felt, do not provide a basis for 
a finding of direct threat.
    This rulemaking is the fourth ADA rulemaking in which 
transportation providers have made safety-related arguments to support 
limits on the accessibility of vehicles or transportation service. The 
first concerned the transportation of individuals in scooter-type 
mobility devices. Transportation providers argued that since it was 
more difficult to secure these devices, and since these devices may be 
more likely to suffer damage in a crash than other types of 
wheelchairs, providers should be able to deny transportation to persons 
using them or require that the passengers transfer to a vehicle seat. 
The Department responded as follows:

    The Department, consistent with the ADA's requirement for 
nondiscriminatory service and its legislative history, in view of 
the ATBCB's definition of a ``common wheelchair,'' and given the 
continued absence of information in the record that would support a 
finding that carrying non-traditional wheelchairs would constitute a 
``direct threat'' to the safety of others, is retaining the basic 
requirement proposed in the NPRM. Under this requirement, any 
``common wheelchair'' (i.e., one that will fit on a lift meeting 
Access Board guideline requirements) must be carried. The provider 
cannot deny service on the ground that the wheelchair is not secured 
to the provider's satisfaction. The transit authority may require 
that the wheelchair park in one of the securement locations 
(generally, the Access Board guidelines require two such locations 
in a vehicle) and that the user permit the device to be secured 
using the vehicle's securement system. If the vehicle (e.g., a 
currently-existing bus) does not have a securement system meeting 
standards, the entity must still use a securement system it has to 
ensure as best it can, that the mobility device remains within the 
securement area. (56 FR 45617; September 6, 1991).

    Second, transportation providers sought change in the provision of 
the Department's ADA rule requiring providers to allow standees to use 
lifts. Again, the argument was that standees posed unacceptable safety 
risks. The Department responded as follows:

    The key point in the comments, from the Department's point of 
view, is the absence of information documenting a safety problem 
resulting from standees' use of lifts. The ADA is a 
nondiscrimination statute, intended to ensure, among other things, 
that people with disabilities have access to transportation 
services. To permit a transportation provider to exclude a category 
of persons with disabilities from using a device that provides 
access to a vehicle on the basis of a perceived safety hazard, 
absent information in the rulemaking record that the hazard is real, 
would be inconsistent with the statute (c.f., the discussion of the 
transportation of three-wheeled mobility devices in the preamble to 
the Department's September 6, 1991, final ADA rule (56 FR 45617)). 
While we understand the concerns of transit agency commenters about 
the potential safety risks that may be involved, the Department does 
not have a basis in the rulemaking record for authorizing a 
restriction on lift use by standees. (58 FR 63096; November 30, 
1993).

    Third, a transit authority petitioned the Department for a rule 
that would permit it to deny use of bus lifts to wheelchair users at 
certain stops that it deemed too difficult or dangerous for wheelchair 
users to use. While this proposed rule change would deny wheelchair 
users the use of facilities used by all other passengers, the 
petitioner asserted that it was necessary on safety grounds. The 
Department denied the petition, stating the following basis:

    * * * [T]he ADA imposes strong legal constraints on the use of 
classifications based on disability. Under the ADA, a proposed 
action which treats a disability-based class of persons differently 
from the rest of the public cannot be accepted merely because it may 
assuage a party's good faith concerns about safety. This is a 
position that the Department has taken consistently as it has 
developed and implemented its ADA regulations [citing 56 FR 45617, 
quoted above] * * *. Subsequently, transit community commenters 
raised the issue of the use of lifts by standees, which the original 
version of Part 37 required. The commenters expressed the concern 
that standees could fall off the lifts or hit their heads, resulting 
in injury to passengers and liability for providers * * *. [T]here 
was little information in the record demonstrating that a real 
safety problem, as distinct from speculation or fears concerning 
potential safety problems, existed. The Department rejected the 
proposal [citing (58 FR 63096, quoted above] * * *.
    The Department's analysis of the [bus stop] petition is very 
similar to its response to these two previous issues. The petition 
presents a genuine, good-faith concern that a certain condition 
(here, terrain or other problems at particular bus stops) may create 
a safety hazard for a class of persons with disabilities. There is, 
in the comments favoring the petition, agreement that difficult 
conditions at some stops might, indeed, create some safety risks for 
wheelchair users or other persons with disabilities. But there is 
little in the record to suggest that there is substantial, 
pervasive, or strong evidence that a real, as distinct from 
speculative, safety problem exists.
    To its credit, the petitioner attempted to show the Department 
that problem stops existed for which the petitioner's proposed 
remedy was needed. The petitioner provided a videotaped 
demonstration of wheelchair users attempting to get on and off buses 
using lifts at several problem stops. After reviewing the tape, the 
Department concluded that it is reasonable to believe that at such 
stops, wheelchair users may well have greater difficulty, and take 
longer, in using bus lifts than at other stops. In some of the 
situations, there could be a higher risk to wheelchair users than at 
other, more ``normal,'' stops. The Department does not find this 
evidence sufficient, however, to justify carving out an exception to 
the nondiscrimination mandate of the ADA.
    In thinking about situations in which safety reasons are 
advanced for using disability-based classifications, the Department 
finds it useful to consider the ``direct threat'' provisions that 
exist in other provisions of the ADA. ``Direct threat'' permits 
exceptions--specific to an individual--to be made to ADA 
nondiscrimination requirements on the basis of safety. The 
Department of Justice (DOJ) rule implementing Title III of the ADA 
in the context of public accommodations defines the concept as 
follows [citing 28 CFR 36.208, quoted above] * * *.
    [T]he Department believes that it is appropriate, and in keeping 
with the language and intent of the statute, to determine that 
disability-based classifications in transportation having a safety 
rationale are supportable only on the basis of analysis that 
incorporates the essentials of the ``direct threat'' concept in a 
way consistent with the nature of transportation programs. The 
petition at issue in this rulemaking does not, in the Department's 
view, closely approach what is necessary to be adopted under such an 
analysis. (61 FR 25410-25411; May 21, 1996)

    A common theme runs through each of these rulemaking decisions. 
Transportation providers sought to limit accessibility on the basis of 
safety. Transportation providers speculated that there might be safety 
risks, but were unable to provide any significant evidence that the 
risks were real. The Department, noting that there was not enough 
evidence to support a ``direct threat'' finding, rejected the attempts 
to limit accessibility. The direct threat concept itself, and the 
Department's well-established application of the concept to 
transportation rulemakings, place the burden of proof on the proponent 
of limiting accessibility to demonstrate that a direct threat exists. 
The Department is not required to prove a negative--to demonstrate that 
there is no possible safety risk, or conduct extensive studies to 
disprove the existence of a risk that commenters assert may exist--in 
order to implement

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fully the nondiscrimination requirements of the ADA.
b. Is There Evidence of a Direct Threat in This Case?
    Bus industry comments speculated that there could be problems 
regarding such matters as the crashworthiness of wheelchairs, the 
adequacy of Access Board guidelines for the force to be restrained by 
securement devices, and assertedly greater risks because OTRBs travel 
at higher speeds than transit buses. The bus industry's argument is 
that the Department must study each of the issues it raised, and engage 
in lengthy safety rulemakings, before it may proceed with a requirement 
that passengers be able to travel in their own wheelchairs.
    As noted above, the Department is not obliged to demonstrate that 
there are no safety risks before imposing an accessibility requirement. 
Instead, before it could impose a limitation on accessibility, the 
Department would have to conclude, based on evidence in the record, 
that there is a direct threat. There is no evidence in the record of 
this rulemaking demonstrating that any safety problem--let alone a 
problem significant enough to constitute a direct threat--exists with 
respect to the transportation of wheelchair users in their own mobility 
devices on board OTRBs.
    The record is replete with representations by OTRB operators that 
they have successfully used accessible OTRBs for considerable periods 
of time. For example, the same industry association that included the 
Boehly statement also attached a summary of the accessible bus 
experience of many of its members. From all this experience of bus 
operators carrying actual wheelchair users in actual buses there is not 
a single study, not a single set of data, not a single summary of 
insurance claim information, not a single court decision imposing 
liability on a bus operator for a wheelchair-related injury, not a 
single accident report, not even a single anecdote demonstrating that 
carrying wheelchair users in their own mobility aids has ever had any 
actual adverse safety consequences. Notwithstanding the safety 
arguments in their comments, industry commenters repeatedly advocate 
using a percentage of accessible buses with lifts and securements to 
implement the ``service-based approach'' they support. The Department 
cannot limit the accessibility of wheelchair passengers without a basis 
in evidence sufficient to support a direct threat determination.
c. Bus Speeds
    The industry argument concerning bus speeds is essentially that 
since OTRBs frequently travel at highway speeds (i.e., 55-70 miles per 
hour on Interstate highways), the securement standards applied to 
transit buses, which typically travel at slower city speeds, may not be 
adequate for OTRBs. It is fair to assume that, if an OTRB crashes at 
full highway speed, there are serious risks of death and injury to all 
persons aboard the vehicle, including those using vehicle seats. One 
need not look further than this year's multi-fatality crash of an 
intercity bus in Pennsylvania to prove the point. Fortunately for 
everyone concerned, OTRB service one of the safest modes of 
transportation (one industry web site declares that ``people are nearly 
twice as likely to die of dog bite than in a bus crash''), and high-
speed crashes like the one in Pennsylvania appear to be rare.
    The bus industry, individual companies, and their insurers are in 
the position to know a good deal about the industry's crash experience. 
For example, the industry would know what proportion of its crashes 
take place at highway speeds and what proportion take place at lower 
speeds in more congested urban areas. The comments do not include data 
of this kind. As with other types of vehicles, it appears likely that 
there is a higher probability of OTRBs having accidents in the midst of 
urban congestion, rather than on the safer ``open road'' of the 
Interstate system. In other words, while OTRBs travel more vehicle 
miles at highway speeds than do transit buses, it is reasonable to 
suppose that their principal exposure to crashes is likely to be in a 
similar environment to the one that transit buses inhabit.
    It should also be noted that, in HOV lanes, busways, suburban 
express commuter routes, and off-peak travel on Interstate highways, 
transit buses often do travel at highway speeds. Transit buses, of 
course, must permit wheelchair users to travel in their own 
wheelchairs. No one has presented any evidence to the Department, in 
this rulemaking or otherwise, demonstrating the existence of a safety 
problem related to wheelchair users traveling in their own wheelchairs 
in this context. Nor is there such evidence in the record concerning 
intercity, commuter, or rapid rail systems, in none of which passengers 
are required to use securement systems for their wheelchairs and all of 
which involve travel at higher than highway speeds.
    There appears to be more in common between the risk exposure of 
transit bus and OTRB passengers than the industry comments suggest. 
There is no evidence to suggest that wheelchair passengers traveling in 
their own mobility aids are a significant safety problem in either 
context. The Department does not have a basis concerning the relative 
speeds of transit buses and OTRBs for determining that there is a 
direct threat resulting from wheelchair passengers traveling in their 
own mobility devices.
d. Wheelchair Crashworthiness
    This argument, developed at its greatest length in the Boehly 
statement, is that no one, including NHTSA, has established 
crashworthiness standards for wheelchairs that are used on board buses 
or other conveyances. Since there is a great variety of mobility aids, 
and little is known about how many models perform in crashes, industry 
comments say, there should be studies and a NHTSA rulemaking addressing 
wheelchair crashworthiness before an OTRB accessibility requirement is 
issued.
    The Department agrees that accessible OTRBs, like other vehicles, 
must meet applicable NHTSA and FHWA safety requirements. We would not 
require OTRB operators to take action, or obtain equipment, that 
violate established safety requirements. The final rule includes 
language to this effect. In this regard, we take the same path as we 
did under the Air Carrier Access Act, where our regulations specify 
that carriers are not required to act contrary to FAA safety 
regulations.
    It is quite another thing, however, to say that the Department 
should withhold accessibility requirements pending a rulemaking that 
NHTSA is not now pursuing and that NHTSA does not believe it has 
jurisdiction to pursue. The Department has no history of regulating 
wheelchairs and no explicit authority to regulate them. The Boehly 
statement asserts that NHTSA should pursue such a rulemaking. However, 
the absence of a rule that commenters believe NHTSA should issue in the 
future has no legal or practical effect on the issuance of an ADA rule 
by Department today.
e. Securement Device Standards.
    Industry comments and the Boehly statement recommend detailed 
studies of the crash performance of OTRBs and wheelchairs, with the aim 
of establishing engineering standards for the design loads of 
securement devices. Once again, should NHTSA choose to conduct such 
studies, and should the studies result in the issuance of a final NHTSA 
rule, the rule would apply prospectively to accessible OTRBs.

[[Page 51674]]

Meanwhile, nothing in the record of this rulemaking demonstrates either 
that the proposed Access Board design loads for securement devices are 
inadequate or that present or future securement devices used on 
accessible OTRBs result in a direct threat. It bears reemphasis that 
speculation about potential hazaards is not a basis for a direct threat 
finding that would justify a limitation on accessibility.
    Members of the bus industry who have accessible buses can be 
presumed to know what types of securements they currently use. If they, 
or their risk managers, have used or recommended securement systems 
that exceed the proposed Access Board guidelines, that information is 
available to them. No such information was provided in the record for 
this rulemaking, however. It should be pointed out, in any case, that 
the Access Board guidelines for accessible vehicle are minimums. If bus 
companies believe that securements exceeding these guidelines are 
advisable, they can install them. We also note that requirements to 
purchase accessible buses do not begin to apply to carriers until two 
years from the effective date of this rule. To the extent that bus 
companies are genuinely concerned about the adequacy of existing 
securement devices, this time should permit them to undertake 
additional development work toward improved securements that the bus 
industry could use.
f. OTA Recommendation
    Industry comments cite statements in the OTA study discussing 
safety issues concerning transportation of wheelchairs in OTRBs and 
recommending further review of standards for carriage of wheelchairs in 
OTRBs. The OTA statements briefly mention potential risks to wheelchair 
users and other passengers. Like statements by industry commenters 
themselves about potential risks, the OTA statements do not provide a 
factual basis for a direct threat finding. Data, not speculation, is 
needed to establish a direct threat.
    The OTA statements concerning potential safety issues were in 
context of a report that clearly recommended that all new buses be 
accessible and that wheelchair users ride in their own mobility aids. 
It is clear from the OTA report that OTA did not believe that its 
statements about potential safety issues precluded a requirement for 
accessible buses. Moreover, as the ADA itself provides, the Department 
is obliged to consider OTA's recommendations but is not required to 
adopt them. Bus industry comments clearly recognize this point when 
they urge the Department not to follow OTA recommendations to make all 
new buses accessible.
    One other OTA statement cited in bus industry comments has to do 
with the ability of bus operators to secure wheelchairs properly if 
they do not do so frequently. The final rule requires bus companies to 
train their operators to proficiency in, among other things, wheelchair 
securements. In response to industry commenters' concern that their 
operators might forget how to carry out this or other functions, the 
rule also mandates refresher training, as needed, to maintain 
proficiency. The rule does not mandate any particular training time, 
curriculum, or inteval. These matters are best left to bus companies as 
they determine what is necessary to ensure that employees become and 
remain proficient as providing service to passengers with disabilities.
g. Buses and Airplanes
    Industry comments argue that because wheelchair users must transfer 
to aircraft seats, it may be necessary for safety reasons to follow the 
same practice in OTRBs. As one comment put it, ``If onboard wheelchairs 
are deemed not safe for the airline industry, they cannot be assumed 
safe in the OTRB industry.'' This argument misses what should be a very 
obvious point: buses don't fly. Industry comments that make much of the 
differences between OTRBs and transit buses do not mention the far 
greater differences between OTRBs and commercial passenger aircraft.
    OTRBs do not take off, cruise, and land at speeds in the hundreds 
of miles per hour. Even on the most potholed of city streets, OTRB 
passengers do not experience forces similar to those experienced by 
airline passengers during episodes of turbulence. In normal flight, 
airline passengers are likely to experience substantially higher g 
forces (e.g., takeoff acceleration), steeper angles (e.g., while 
ascending and descending) and bigger bumps (e.g., upon many landings) 
than bus passengers. DOT safety rules for seats and passenger 
restraints in buses (see for instance 49 CFR 571.207 and 571.222) and 
aircraft (see for instance 14 CFR 25.562 and 25.785) are very different 
from one another, as befits the different modes of transportation. For 
example, airline passengers are required to fasten their seat belts, 
which themselves have very specific requirements for the forces they 
must restrain. Buses are not even required to have seat belts.
    The flawed analogy between aircraft and OTRBs fails to establish 
that, because aircraft passengers must transfer into airplane seats and 
fasten their seat belts, there is a direct threat to the safety of bus 
passengers if wheelchair users ride in their own wheelchairs.
h. Other Statutory Provisions
    In addition to citing the direct threat language of the ADA, the 
Boehly statement refers to ADA language tasking OTA with studying ``the 
degree to which [OTRBs] and service are * * * readily accessible to and 
usable by individuals with disabilities'' (citing 42 U.S.C. 12185(2) 
[sic]. The statement asserts that this term means that buses be able to 
be entered ``safely and effectively.'' The latter words are not in the 
statutory provision.
    In any case, this portion of the ADA is not a mandate that the 
Department must prove that there are no potential safety issues before 
issuing an accessibility rule. Neither the statute nor the courts have 
ever stated or implied such a requirement in any ADA context. The 
extent to which OTRBs are ``readily accessible'' was one of several 
matters into which OTA was to look as it made recommendations 
concerning OTRB accessibility. As noted above, OTA strongly recommended 
that all new buses in fixed-route be accessible. Of course, DOT is not 
obliged to adopt OTA's recommendations in any case. This language does 
not preclude the Department from issuing a requirement for accessible 
OTRBs, even if alleged safety issues are not resolved to the industry's 
satisfaction.
    Commenters also cited a provision of the Department of 
Transportation Act that provides that the Secretary is to consider the 
needs for effectiveness and safety in transportation systems. This is 
part of the general statement of the Department's responsibilities. It 
is not a requirement that the Department proceed in any particular way 
on this or any other specific rulemaking.

DOT Response--Intermodal Unfairness

    All modes of transportation have to meet significant accessibility 
requirements. These obligations are well known. Many are parallel to, 
or more stringent than, requirements for OTRB accessibility. New 
transit buses and intercity, commuter and rapid rail cars must be 
accessible, just like new fixed-route OTRBs. Other modes must make good 
faith efforts to obtain accessible used vehicles as well; there is no 
parallel requirement for OTRBs. OTRBs are excused from requirements to 
have accessible restrooms if doing so will result in a loss of seats; 
intercity rail cars are not. Fixed-route transit

[[Page 51675]]

authorities must provide expensive, operating cost-intensive 
paratransit services to passengers who cannot use fixed-route transit. 
There is no parallel to this requirement for OTRB companies. The ADA 
requires facility modifications for rail stations (e.g., key station 
retrofits for rapid and commuter rail; retrofits of all Amtrak 
stations). OTRB companies, whose existing stations are subject only to 
the general requirements of Title III of the ADA, have no parallel 
retrofit requirement.
    Infrastructure-related costs also vary among the modes. New rapid 
rail systems have significant construction costs. All types of rail 
systems, directly or indirectly, pay to maintain their rights of way. 
Through airport landing fees, aviation fuel taxes, and passenger 
facility charges, airlines directly or indirectly contribute 
significantly to the costs of the construction and maintenance of the 
infrastructure they use. OTRB operators, on the other hand, have since 
1984 been exempt from all but three cents of the Federal tax on diesel 
and other special fuels. The value of this exemption is currently 21.3 
cents per gallon. This tax saving--in effect, an indirect Federal 
subsidy--allows the bus industry to use the nation's highway 
infrastructure at a considerably lower cost than other users.
    The airline industry is governed, for accessibility purposes, by 
the Air Carrier Access Act, rather than the ADA. Like the OTRB 
industry, it consists of private companies who (except for some small 
carriers who receive financial assistance under the Essential Air 
Service program) do not receive public grants. Unlike the OTRB 
industry, airlines provide for level-entry boarding for all passengers 
in many situations, usually through expensive loading bridge equipment. 
Recently, the Department began requiring lifts for situations in which 
level-entry boarding does not exist for small commuter aircraft at most 
commercial service airports. We anticipate proposing to expand this 
requirement to other aircraft where level-entry boarding is not 
available. (The Department's rule provides for carriers and airports to 
work together to make lifts available.) It is not correct to say, as 
one industry comment suggested, that airports with fewer than 10,000 
annual enplanements are not subject to accessibility requirements. As 
public entities, airports are subject to normal ADA Title II 
requirements for accessibility, without regard to the number of 
enplanements.
    Industry comments also argue that most transportation providers in 
other categories receive significant Federal grants. Such programs do, 
of course, exist. We would point out that TEA-21 authorizes a subsidy 
for OTRB operators dedicated to accessibility costs. The overall grants 
to other surface modes are higher, in their absolute amounts, than the 
subsidy authorized by TEA-21 for OTRB accessibility. Of course, the 
other surface modes also have higher total costs and higher 
accessibility costs (especially for mass transit, with its paratransit 
mandate).
    It should also be emphasized that in transit and intercity rail, 
Federal grants are not dedicated to the purpose of defraying 
accessibility costs. They are grants that apply to the overall capital 
and, to an extent, operating costs of the systems. (TEA-21 largely 
eliminated transit operating assistance, which was available to help 
pay for the costs of paratransit operations.) Accessibility programs 
must compete for these Federal grants with other system priorities. 
Unlike grants for mass transit and Amtrak, the subsidy authorized in 
TEA-21 for OTRB operators is dedicated to accessibility costs (the 
transit program does provide an additional 10 percent Federal share 
toward capital purchases of accessibility equipment). This subsidy 
addresses, precisely and in a significant way, the costs of compliance 
with this rule. In this important respect, it has no parallel in other 
modes. As with all TEA-21 funding for all programs, even those with 
guaranteed funding, the availability of funds is subject to the budget 
and appropriations processes.
    It is true, as industry comments point out, that the TEA-21 OTRB 
subsidy is only authorized through the end of TEA-21. This is true of 
transit and Amtrak grants as well, all of which must be reauthorized in 
the next highway/transit authorization bill in order to continue. As 
noted below, other Federal funding sources are available to help defray 
OTRB costs.
    Transportation modes differ significantly from one another. 
Accessibility requirements, and sources of funds to pay for them, are 
not the same in every mode. It is not fair to say, however, that 
accessibility requirements are more burdensome for OTRB operators than 
for anyone else. Nor is it fair to say that the OTRB industry is worse 
off than everyone else with respect to accessibility costs or Federal 
assistance in helping to meet the costs.
    In any event, the Department is not required, as a legal or policy 
matter, to equalize the burdens on all modes or companies. There is no 
provision of the ADA that so requires. In the ADA, Congress specified 
the requirements for other surface modes, sometimes in great detail. 
Congress delegated the task of determining requirements for OTRBs to 
the Department, but nothing in the language or legislative history of 
the ADA requires OTRB costs to be the same as, or directly proportional 
to, costs in other types of transportation.
    Nor do any provisions of the DOT Act or other statutes applying to 
the Department require an ``equalization'' of costs, burdens, or 
benefits among modes. Given the very real differences among modes, it 
is doubtful that such a result is attainable, and it is not required in 
other areas, such as safety regulation (e.g., where airlines are 
regulated in significantly greater detail than buses) or grant program 
provisions (e.g., where Federal financial assistance pays a greater 
portion of the costs of building a highway than operating a transit 
system). Accessibility requirements may likewise legitimately reflect 
differences among the modes.

DOT Response--Conclusion

    The Department's final rule, and the DOT/Access Board provisions 
concerning accessible bus standards, will continue to provide for 
wheelchair users riding in their own mobility aids.

Accessible Buses and the ``Service-Based Approach''

    One of the principal debates surrounding this rulemaking is that of 
the competing claims concerning the necessity for accessible buses in 
operators' fleets. Generally, disability community commenters said that 
accessible buses were essential, while operators said that a ``service-
based approach'' centering on 48-hour advance notice service would 
provide just as good service on a much more cost-effective basis. While 
this debate touched on charter/tour service, it focused on fixed-route 
service.
    Disability community comments unanimously said that service in 
accessible buses was essential, and that solutions short of this--use 
of station based-lifts, boarding chairs, etc.--were wholly inadequate. 
Risks of transfer were real (e.g., passengers who were dropped, 
passengers who had to crawl on board, wheelchairs that were damaged), 
they said, and station-based lifts and sufficient personnel to assist 
boarding would not exist at many stops. The lack of service in 
accessible buses denies needed and essential transportation 
opportunities to persons with disabilities, many of whom are low-
income, transit-dependent persons, with few if any affordable 
transportation alternatives, particularly in rural areas. Advance-
notice fixed-route service on a permanent basis is discriminatory, they 
said. All passengers must have the same

[[Page 51676]]

opportunity to travel when they wished, including on short notice.
    Moreover, the ``pooling'' arrangements needed for the industry's 
approach would not work, they said. The logistics are complicated, and 
there is no information to suggest that they could be made to work 
successfully, particularly in the context of interlining or other 
service requiring well-timed transfers between buses. Commenters were 
concerned that passengers would be stranded at transfer points. One 
disability group did an informal survey of advance notice service by a 
large operator under present Sec. 37.169 that it said revealed numerous 
failings in the service. If carriers can't make present interim service 
work, commenters argued, how can they make their ``service-based 
approach'' work? Other disability community comments also related 
anecdotes of failed advance notice service in the bus industry. 
Commenters also recalled what they viewed as significant logistical 
problems with ADA paratransit and advance notice service in the 
airlines, saying that it is very difficult for any organization or 
group of organizations to make such service work consistently well. 
Moreover, the industry has also underestimated the cost and difficulty 
(e.g., communications, computer services, planning, dispatching, 
deadheading) of operating good demand-responsive service.
    From the industry's point of view, requiring all new buses to be 
accessible is unnecessary and cost-ineffective. Given the low usage of 
accessible buses that the industry expects, a small number of 
accessible buses (e.g., 80 for Greyhound) deployed in a 48-hour advance 
notice mode could meet all fixed-route demand, commenters said. Doing 
so would be far more cost-effective than acquiring a fleet of 
accessible buses, in the sense that the industry would spend fewer 
dollars per expected ride by persons who need accessible buses. Some 
unions for bus company employees supported this point of view.
    Commenters assured the Department that the logistics of such a 
system could work, though they provided few details about how it would 
work. The carrier that was the subject of the disability group survey 
that alleged poor service commented that it had an extensive training 
program for its personnel and that it could either not verify most of 
the problems alleged or that the alleged problems were contrary to its 
policy. Operators also commented that the service-based approach would 
provide accessible service sooner than the NPRM's proposal, which they 
said would ``delay'' accessible service for 12 years, compared to the 
advance notice system they were prepared to inaugurate in the near 
future.
    Industry commenters also disagreed with the disability groups' 
assertion that advance notice service in the fixed-route context was 
discriminatory. One operator commissioned a survey of a small number of 
selected passengers who, it said, preferred an advance-notice system to 
something like the Department's NPRM. Moreover, this operator said, 
most passengers--particularly most disabled passengers--call ahead of 
time to make arrangements for or inquiries about service. If passengers 
ordinarily call ahead of time anyhow, the carrier argued, it is not 
discriminatory to require them to do so in order to get an accessible 
bus.
    DOT Response. Two good friends and traveling companions, Don and 
Mike, go to the bus station Monday morning. Don is ambulatory. Mike is 
a wheelchair user. They both approach the ticket window and pay $34 for 
a ticket. The ticket seller says to Don, ``Your bus is at Gate 5. It is 
leaving in 10 minutes. Get on it and proceed to your destination.'' The 
ticket seller says to Mike, ``Come back Wednesday. Then we'll have a 
bus you can use.'' The scenario works the same way over the telephone. 
In response to their Monday morning calls, the reservationist says to 
Don, ``Your reservation is confirmed. You bus leaves at noon today.'' 
To Mike, the reservationist says, ``Your reservation is confirmed, but 
you can't leave until noon Wednesday, because we won't have a bus you 
can use before that.''
    In this scenario, two people seek the same service at the same 
time. One gets the service immediately, the other gets the service 
after a two-day delay. The only difference between them is that one is 
ambulatory and the other is a wheelchair user. In a very precise sense, 
the scenario is discriminatory: it provides more delayed, less 
convenient service to some passengers than to others, based solely on 
disability. Adopting industry proposals for fixed-route service across 
the board, particularly with respect to large-fixed route operators 
whose service constitutes the backbone of intercity bus service, 
permanently institutionalizes this scenario. This is very difficult to 
reconcile with the purposes of a nondiscrimination statute like the 
ADA.
    In establishing a rule for large fixed-route carriers' obligations 
under the ADA, it is not appropriate for the Department to adopt a 
system institutionalizing disability-based distinctions in the quality 
of service. Doing so would mean that carriers who provide a large 
majority of all intercity trips would never need to provide fully 
accessible, everyday, nondiscriminatory service. While it makes policy 
sense to make some accommodations for small carriers on the margins of 
the fixed-route system (see discussion of small mixed-service operators 
below) the Department believes the backbone of intercity service must 
consist of fully accessible, nondiscriminatory everyday service if the 
purposes of the ADA are to be fulfilled.
    It may be that many passengers, disabled and non-disabled alike, 
call fixed-route bus companies before they travel. Certainly, under 
present Sec. 37.169, calling ahead to try to arrange boarding 
assistance is the only way passengers with disabilities can hope to 
travel on most fixed-route bus service, so it would be surprising if 
some passengers didn't call. We note that commenters, while saying that 
a lot of passengers called for information before traveling, did not 
assert that large percentages of passengers made advance reservations. 
Since carriers provide immediate service to passengers (unless they are 
disabled passengers requiring boarding assistance), it is not necessary 
for them to do so.
    In any case, the fact that passengers may call for information does 
not negate the discriminatory impact of requiring a disabled passenger 
to make an advance reservation while other passengers can and do 
receive immediate service. Even if everyone called the bus company 
ahead of time, and even if everyone made a reservation, a system that 
allowed non-disabled passengers to make a reservation for today while 
requiring disabled passengers to make a reservation for two days from 
today would be discriminatory. It would single out passengers with 
disabilities as the only category of persons who were required to make 
reservations two days in advance.
    Industry comments consistently assert that a service-based system 
will work in the fixed-route context. Unfortunately, industry comments 
included little, if any, factual or analytic information from which the 
Department can determine whether such a system really would work. Given 
the number of points served by fixed-route bus systems and the 
complexity of bus scheduling, particularly where transfers and 
interlining are involved (points made by bus industry commenters 
themselves in the context of their discussion of unscheduled rest 
stops), it is not self-evident that the logistics of 48-hour advance 
notice service could be made to work system-wide. Disability community 
comments raised reasonable

[[Page 51677]]

doubts about the likelihood of success, based on experience with the 
bus industry and other modes.
    The Department reviewed the information in one industry comment 
concerning the brief consumer research paper prepared by a consultant. 
It involved telephone interviews with a small number of wheelchair 
users, many of whom were selected because of previous phone contacts 
with the carrier. The researcher then asked the respondents whether 
they would prefer a 48-hour advance reservation system or a system in 
which all buses were accessible, but all passengers would pay a fare 
increase (the information in the comment did not state what size fare 
increase the researchers suggested to respondents would be involved). 
The questions appeared to assume that the advance notice system would 
succeed logistically in producing the requested service. Most of the 
respondents said they preferred the advance notice system under these 
circumstances.
    This consumer research paper is neither persuasive nor relevant. 
The small number of respondents, the bias in the selection method for 
many of the respondents, and the bias produced by the form of the 
questions and the assumptions underlying them, among other factors, 
undermine whatever value it might have as popularity poll for the point 
of view it was designed to support. It is best viewed as an 
illustration of the survey research truism that one can determine the 
outcome of a poll by the way one formulates the questions.
    In any case, popularity polls for policy choices have limited 
relevance to the rulemaking process. Unlike some activities (e.g., TV 
network programming), rulemaking is not run by polling numbers. 
Compared to the substance of comments on the record from those 
individuals and organizations who chose to actually participate in the 
rulemaking process, such polls carry little weight. If the individuals 
polled believed that the Department should alter its proposed approach, 
they had the opportunity to comment and say why, but they apparently 
chose not to do so (since no comments from individuals who identified 
themselves as having disabilities took the position that the poll 
represents the respondents took.)
    It is not accurate to say that the Department's decision to require 
the acquisition of new accessible buses will in any sense ``delay'' 
accessible service, compared to the industry's preferred approach. 
Under the interim service provisions, fixed-route operators will have 
to provide 48-hour advance notice service until their fleets are 100 
percent accessible, just as the industry proposed. The difference 
between the industry proposal and the final rule is that, under the 
latter, most fixed-route fleets--particularly those of large carriers--
will ultimately become 100 percent accessible, rather than advance 
notice service becoming the permanent approach.
    The industry's economic arguments are discussed in more detail in 
subsequent sections of the preamble. At this point, we note that 
industry comments have repeatedly mischaracterized the provisions of 
the ADA relating to the OTA study as requiring the Department to adopt 
a ``cost-effective'' solution. The provisions of the ADA say no such 
thing. Rather, the provisions of the Act list cost-effectiveness as one 
of several matters that OTA was to study. DOT was to take OTA's study, 
its purposes, and its recommendations into account, which the 
Department has done. The statute does not mandate that the Department 
accept any of OTA's findings. It does not mandate that the outcome of 
the Department's rulemaking meet any particular substantive test. 
Congress could have written statutory language that said ``DOT shall 
issue a regulation adopting the approach to OTRB bus accessibility 
having the lowest cost per stimulated trip,'' or ``DOT shall not issue 
a regulation unless the approach satisfies industry cost-effectiveness 
criteria.'' Such language may have had the effect the industry seeks to 
read into the existing statutory language. But Congress did not do so.
    We also note that it is difficult to argue that an approach is 
``cost-effective'' unless it is effective in achieving its objective. 
The objective of OTRB service under the ADA is to provide service that 
works to passengers with disabilities in a nondiscriminatory manner. A 
system premised on a discriminatory mode of providing service that has 
not been demonstrated to be workable cannot be presumed to be 
effective.

Fleet Accessibility Deadlines

    The NPRM proposed to require fixed-route operators to ensure that 
their fleets were 50 percent accessible 6 years into implementation of 
the final rule and 100 percent accessible 12 years into implementation. 
Small operators would be excused from these deadlines if they had not 
obtained enough new buses in those time periods to meet the required 
fleet accessibility percentages. These deadlines were intended to 
provide a time certain when passengers could count on regular, 
scheduled accessible service on all runs as well as to create a 
disincentive for companies to delay bus replacements to postpone 
accessibility. The 12-year target for 100 percent accessibility was 
based on information concerning the normal bus replacement cycle of 
large carriers. In addition, demand-responsive providers were to 
achieve 10 percent fleet accessibility within two years, again with a 
provision excepting small carriers who did not obtain enough new buses 
in that period to meet the deadline.
    Disability community commenters generally supported the concept of 
fleet accessibility deadlines for fixed-route operators. Commenters 
believed that fleet accessibility schedules were important, among other 
reasons because, in their view, the bus industry was so opposed to 
accessibility that it could not be trusted to proceed toward 
accessibility in a measured way. It was necessary to hold the 
industry's feet to the fire, in this view. However, most of these 
commenters thought that the proposed deadlines were too far into the 
future. They would allow 20 years between the passage of the ADA and 
full accessibility, some pointed out. The bus industry should not be 
rewarded for its opposition to accessibility and the statutory and DOT-
created delays in promulgating rules, others said. Suggestions for 
fleet accessibility timetables included 4 and 8 years, 4 and 10 years, 
2 and 5 years, 3 and 6 years, etc. for 50 and 100 percent fixed-route 
fleet accessibility.
    Even aside from its opposition to a requirement to obtain new 
accessible buses, the bus industry strongly opposed the proposal for 
fleet accessibility deadlines. Part of this opposition appears to be 
based on a concern about their effect on small fixed-route operators. 
Industry comments expressed concern that the deadlines would force 
small companies to accelerate the purchase of vehicles, purchase new 
instead of used vehicles, or take other uneconomic actions that would 
impose unreasonable costs and lead them to abandon fixed-route service. 
Commenters also expressed concern about the potential effect of the 
deadlines on the resale value of inaccessible buses.
    Moreover, commenters said, the proposed deadlines were based on the 
replacement cycles typical of large carriers, which do not necessarily 
apply to smaller carriers. Even large carriers may not always be able 
to maintain a 12-year replacement cycle, commenters said, because of 
changes in economic conditions. The requirement placed them in an 
economic straitjacket that

[[Page 51678]]

hampered their ability to respond flexibly to market conditions, they 
said. It was unfair to impose on bus operators a timing requirement 
that other modes did not face under the ADA, they added.
    With respect to charter/tour service, disability community 
commenters generally favored the 10 percent requirement, though some 
thought it was too low, believing that 20 or 25 percent would be a 
better figure to ensure the availability of accessible buses in the 
charter/tour segment of the industry. Bus industry commenters decried 
what some called a ``quota'' approach, saying that this imposed 
unnecessary costs and that it made more sense to eliminate a number-
based requirement altogether and simply require that operators meet 
identified needs on a 48-hour advance notice basis, with an 
accountability mechanism.
    DOT Response. It appears that some of the bus industry's concerns 
about the effect of the proposed deadlines on small operators were 
based on a misunderstanding of the NPRM. Used buses would not be 
required to be accessible. Retrofit would not be required. Under the 
NPRM, if a small fixed-route operator did not obtain enough new buses 
within the stated time frames to replace 50 or 100 percent of its buses 
(e.g., it kept its old buses a long time, or it purchased only used 
buses), it would not violate the proposed rule. Substantively, the NPRM 
formulation for small fixed-route operators--the fleet accessibility 
requirement plus the exception--is not very different from a 
requirement to obtain accessible new buses without any fleet 
accessibility requirement being stated.
    In either case, all new fixed-route buses have to be accessible. In 
either case, the total fixed-route fleet becomes accessible only if and 
when all inaccessible buses are replaced with new buses. This being the 
case, we have decided it is simpler and more understandable to 
eliminate the fleet accessibility requirement for small fixed-route 
operators. There will be no retrofit or accessible used bus acquisition 
requirement. Small operators' fleets will become accessible when, and 
to the extent, that they replace existing inaccessible buses with new 
accessible buses. Operators must continue to provide interim service 
until and unless their fleets are 100 percent accessible, which, for 
some operators (e.g., operators who purchase primarily inaccessible 
used buses), could be indefinitely.
    Large fixed-route operators provide the backbone of intercity bus 
service. For fully accessible, nondiscriminatory, everyday service to 
be a reality, those carriers must have accessible fleets within a 
reasonable period of time. These carriers typically purchase or lease 
new buses, and their comments do not deny that they do so on a 10-12 
year replacement cycle. Consequently, the Department believes that it 
is consistent with the purpose and language of the ADA to require large 
fixed-route operators to meet a 6/12-year fleet accessibility schedule. 
Such a schedule is what they would meet via their normal replacement 
cycles, so it should not cause any economic distortions. This schedule 
will give assurance to consumers of the time frame in which they have a 
reasonable expectation of fully accessible service. Shortening these 
time frames, as disability community comments suggested, could force 
companies to disrupt bus replacement schedules or even retrofit 
existing buses, which we do not believe to be desirable.
    The Department realizes that economic conditions can change, and 
companies can face unexpected problems. Bus replacements can fall 
behind historically typical cycles. To provide flexibility for 
unexpected situations, the Department has added a time extension 
provision for large fixed-route operators. If (1) such an operator has 
not obtained enough new buses in 6 or 12 years to meet the 50 and 100 
percent fleet accessibility requirements; (2) it has not put itself in 
this position by, for example, stocking up on an unusually large number 
of inaccessible buses between October 1998 and October 2000; and (3) it 
has otherwise complied effectively with the requirements of the rule, 
the Secretary could grant a time extension beyond the 6 and 12-year 
dates. This provision avoids the potential ``straitjacket'' problem 
asserted by commenters, since it allows bus companies operating in good 
faith to obtain additional time to meet requirements in a way 
consistent with their actual bus replacement practices.
    With respect to charter/tour operators, the Department has decided 
to eliminate the proposed 10 percent fleet accessibility requirement. 
Unlike the fixed-route sector, in which fleet accessibility is 
necessary for fully accessible, nondiscriminatory, everyday service, 
the charter/tour sector is better able to meet its ADA obligations 
through the industry's favored ``service-based'' approach. This is 
because of the advance-reservation nature of charter/tour service. If 
bus industry arrangements produce reliable charter/tour accessible bus 
service on an advance-notice basis, as industry comments assert that it 
can, ensuring that a particular percentage of buses in carriers' fleets 
are accessible becomes less important. The accountability mechanism 
described below is expected to help ensure that the promised service is 
provided.
    Consequently, the final rule does not require charter/tour 
operators to acquire any particular number or percentage of accessible 
buses within any particular time frame. These companies will be 
responsible for providing 48-hour advance reservation service to 
passengers with disabilities in October 2001 or 2002, as applicable, 
rather than two years later as proposed in the NPRM. The two-year delay 
in the NPRM was premised on companies building up to a 10 percent 
accessible fleet in that period. In the absence of the 10 percent 
requirement, the rationale for a phase-in period of this length is 
considerably weakened. A shorter phase-in will be sufficient. Moreover, 
given the assurances of industry commenters concerning their readiness 
to meet advance notice requirements, and the fact that compliance is 
not required for two to three years from now, it is reasonable to 
believe it is feasible for operators to comply in October 2001-2002. In 
addition, retaining the two-year delay would mean that, for passengers 
of most of the operators who are small entities, it would be five years 
before they could count on receiving accessible service.

Small Mixed-service Operators

    Bus industry commenters said that the NPRM's division of operators 
into fixed-route and demand-responsive components did not capture a 
frequent type of operation among small operators. Small operators, they 
said, often provided both kinds of service. Typically, such an operator 
is primarily a provider of charter/tour service. The typical operator 
uses most of its buses in, and makes most of its money from, charter/
tour operations. Its fixed-route operations make up a much smaller 
portion of its overall activities, which may often be economically 
marginal. Often, the same buses are used for both fixed-route and 
demand-responsive purposes (e.g., a bus might be used for fixed-route 
service at one time during the week and demand-responsive service at 
another time of the week, or a bus might be used for charter/tour 
service initially and then moved into fixed-route service as it ages).
    Small operators in this category said that they would need few, if 
any, accessible buses of their own to meet the 48-hour advance notice

[[Page 51679]]

requirements for charter/tour service. They could rely on ``pooling'' 
or other bus-sharing arrangements to produce an accessible bus when 
needed. If they had to buy accessible buses when they bought new OTRBs 
that would be used in fixed-route service, their costs would increase 
to the point where they would have an incentive to eliminate their 
fixed-route service.
    Disability community comments did not discuss this category of 
operator, which the NPRM did not specifically mention. From disability 
community comments on other types of operations, however, it is fair to 
infer that disability community commenters would advocate that all new 
buses used in fixed-route service would have to be accessible.
    DOT Response: In working on the regulatory assessment, the 
Department conducted a brief, informal survey of small bus operators. 
Based on this survey and other information available to the Department, 
the regulatory assessment estimates that for about 5/8 of the carriers 
offering fixed-route service, not more than 25 percent of their fleets 
is allocated to fixed-route service. Survey responses from operators in 
this category indicated that an average of 77 percent of their fleets 
were assigned to charter service.
    The Department believes that industry commenters have a plausible 
argument. If a significant majority of an operator's buses and service 
is devoted to charter/tour service, with a small amount of fixed-route 
service on the side, it is reasonable to believe that the costs of 
acquiring accessible new buses for (often part-time) use in fixed-route 
service would provide an incentive to limit or end fixed-route service. 
In order to avoid this effect, we are modifying the requirements for 
operators in this category, which the final rule defines as a small 
operator 25 percent or fewer of whose buses are used in fixed-route 
service.
    The final rule gives operators in this category the option of 
providing all its service--fixed-route as well as demand-responsive--on 
a 48-hour advance notice basis. This approach would remove the 
incentive to eliminate fixed-route service discussed above. It would 
also permit these small operators to meet all requirements through only 
one set of procedures.
    This approach admittedly has disadvantages from the point of view 
of passengers with disabilities. It encounters the discrimination and 
logistics issues discussed in connection with fixed-route service by 
large operators. As a policy matter, however, the situation of small 
mixed-service operators is quite different from that of large fixed-
route operators. They are at the periphery, not the center, of the 
nationwide intercity bus system. They carry a much smaller percentage 
of fixed-route passengers. Treating these operators differently from 
large fixed-route operators, moreover, is consistent with Regulatory 
Flexibility Act policy. Consequently, the Department has concluded 
that, on balance, this approach is acceptable in this limited set of 
circumstances, particularly in view of the accountability mechanism 
discussed below.

Accountability Mechanism

    A number of bus industry comments, in the course of providing 
assurances that 48-hour advance notice service will work, suggested the 
idea of an accountability mechanism for the provision of promised 
service. There were two principal ideas. One industry association 
suggested a ``complaint board,'' an administrative body that could act 
in a mediation role with respect to consumer complaints and could also 
sanction bus companies that fail to meet their obligations. Another 
industry association suggested a mechanism for the immediate 
compensation of passengers' failure to provide required accessible 
service, generally analogous to ``denied boarding compensation'' in the 
airline industry.
    The Department believes that these industry suggestions have merit. 
The final rule includes a version of the second idea. When an operator 
is obligated to provide service on 48 hours' advance notice (whether in 
charter/tour, interim fixed-route service, or elsewhere) or is 
providing equivalent service (if a small fixed-route operator elects to 
do so), either the required accessible vehicle is provided in a timely 
manner or it isn't. Either the lift works or it doesn't. It is not 
necessary to conduct an administrative proceeding to determine these 
simple factual matters. It is not necessary to refer the question to a 
board sitting in Washington, D.C.
    Instead, when there is a failure to provide required service, the 
operator would pay a predetermined amount of compensation to the 
passenger. This is not a fine or a civil penalty that is paid to the 
Department. It is paid to the passenger whose travel is prevented or 
disrupted by the operator's inability to provide accessible service. 
The amount of compensation is set by an increasing, graduated scale. 
The first time a given operator fails to provide required service, it 
pays the passenger $300. By the fifth such occurrence for any company, 
the amount becomes $700. Assuming that operators' comments that they 
can readily meet the 48-hour requirement are soundly based in reality, 
occasions for paying this compensation should be infrequent. Lest 
paying compensation to the occasional passenger simply be regarded as a 
cost of doing business, the rule states that paying compensation is not 
a defense in litigation brought to enforce compliance with the rule 
(e.g., a ``pattern or practice'' lawsuit filed by the Department of 
Justice under Title III of the ADA).

Stimulated Demand

    There was considerable debate in the comments about the extent to 
which accessible OTRB service will increase passenger demand. This 
issue is important primarily for its effect on the projected net cost 
of compliance with the Department's rule. The greater the stimulated 
demand--new revenue trips generated by passengers with disabilities and 
persons accompanying them--the lower the net compliance cost of the 
rule.
    Bus industry commenters asserted that the estimates of stimulated 
demand in the regulatory assessment accompanying the NPRM were greatly 
overstated. Many small bus companies related their own experience: in 
many years of providing service, they said, they had received few if 
any requests for service from passengers with disabilities. Even some 
companies that had purchased accessible buses and, in a few cases, 
promoted their use had received a miniscule number of requests for 
accessible service.
    More generally, industry comments cited the so-called ``Nathan 
Study,'' a report prepared by a consultant for a large carrier for 
purposes of this rulemaking, for the proposition that, based on 
experience in a few situations in which limited fixed-route OTRB 
service had been provided, stimulated demand could be expected to be 
quite low (e.g., 13,600 trips annually for the largest intercity 
carrier). This experience, commenters said, was more likely to be 
representative of demand than transit or commuter bus experience, 
which, because it involved shorter, less discretionary, trips, was 
likely to produce higher ridership by passengers with disabilities.
    Disability community comments said that there was a large untapped 
market among people with disabilities for service. This market should 
only grow larger with the aging of the ``baby boom'' generation, they 
said. Transportation is a matter of great concern to the elderly and 
disabled, and they will travel if they are assured that

[[Page 51680]]

the entire chain of a trip is accessible. Demand to date has been 
suppressed by the unavailability of accessible service. It is no wonder 
that many bus companies have few requests for service from disabled 
passengers: the passengers know that service isn't accessible, and they 
don't bother to seek service they know they can't readily use. 
Commenters also referred to the substantially higher ridership 
estimates of the OTA study. As has been the case in other modes, 
commenters said, demand will grow as service improves and becomes 
accecssible. This is likely to be true of the intercity bus industry 
because it offers a unique service, which is the only available mode of 
intercity service for many disabled passengers.
    DOT Response: Experience has shown that once passengers with 
disabilities are assured that accessibility is widespread they will 
begin to take advantage of these services. Beyond this general point, 
however, there remains wide divergence in estimates of potential new 
ridership. The ``Nathan Study'' asserts that it anticipates 13,600 
wheelchair passenger trips per year on accessible Greyhound service, 
based on the mid-point of the trip results of on-going operations using 
accessible OTRBs in Massachusetts and Colorado, and service 
demonstration projects in Canada. This report does indicate, however, 
that if made solely on the basis of the Denver Regional Transportation 
District (RTD) experience, an estimate of demand might be as high as 
35,000 trips per year by wheelchair users.
    At the other end of the spectrum is the OTA report, which 
essentially assumes that persons with disabilities would travel and 
generate trips at the same rate as all of the citizens in the 
population once OTRB fleets are fully accessible. The assumption would 
result in 180,000 trips being made annually by persons using 
wheelchairs over the whole intercity fixed-route service system. The 
report goes on to note (pg. 95) that estimating travel demand is 
notoriously difficult for services that have not been introduced. 
Further, the Massachusetts and Canadian programs were not 
representative of full-scale future accessible service because of 
limited connectivity to the broader national system and the continued 
existence of certain barriers to persons with disabilities. Further, 
one can only conjecture how many of the trips estimated by OTA for the 
cited populations are already being taken.
    In preparing the Regulatory Assessment for the final rule, the 
Department relied on estimates from a variety of sources, which varied 
in their projections of stimulated traffic by a factor of seven. Given 
the uncertainties involved in estimating demand generated by a system 
that is not yet in existence, we have expressed our projections in 
terms of a range with a high and low estimates.
    For the high-end estimate presented in the assessment, it is 
assumed that demand by wheelchair passengers and other mobility-
impaired passengers will grow substantially once there is full access 
to a nationwide accessible OTRB system. The urban transit systems that 
will provide connectivity in the form of entrance and egress for many 
intercity OTRB trips will also be becoming more accessible as the ADA 
continues to take effect. Many barriers will remain, however, and for 
the future period with which this Regulatory Assessment is concerned it 
is not expected even for purposes of the high-end estimate that there 
will be achieved the universal accessibility assumed in the estimates 
by OTA.
    When persons with disabilities can travel, they will often take 
along family members or personal assistants. Consistent with the data 
in the American Travel Survey, the high-end estimate assumes that 
approximately 17 percent of new patrons with disabilities will be 
accompanied by family members. On the other hand, transit data suggests 
little additional use of lift service by cane and crutch users, so this 
portion of the estimate was reduced, compared to the NPRM.
    The high estimate implies that new patronage by wheelchair users of 
scheduled intercity OTRB service will be approximately 52,000 per year 
once the fleets of Class I and other intercity regular-route operators 
are fully equipped with lifts (i.e., 12 years into implementation of 
the rule). It assumes that total stimulated traffic will grow to a 
volume of trips of 182,000 annual trips, equivalent to 0.456 percent of 
total current passenger traffic of about 40 million trips per year. 
This percentage is made up of 0.15 persons in wheelchairs, 0.24 percent 
persons with other mobility impairments, and 0.066 percent family 
members or other persons accompanying these passengers. The Regulatory 
Assessment's low estimate of stimulated traffic differs from the high 
estimate in that the percentage of current traffic assumed to be 
accounted for by new patrons in wheelchairs is 0.10 percent rather than 
0.15 percent, with patronage by other mobility-impaired persons and 
accompanying family members adjusted proportionately to 0.16 percent 
and 0.043 percent, respectively, or 0.303 percent altogether. It would 
result in a projection of approximately 121,000 total annual new trips 
when Class I fixed-route fleets are fully accessible. It is expected 
that wheelchair passengers and other mobility-impaired passengers and 
their families will ultimately take advantage of between 171 and 262 
thousand additional trips per year on fixed-route services and between 
397 and 595 thousand trips on charter/tour services. It should be 
pointed out that one of the sources of difference between the 
industry's figures and the Department's is that the former concerns 
demand at the beginning of a process leading to a fully accessible 
system, while the latter projects demand once a fully accessible system 
is in place, some years later.
    While the high estimate of new patronage by wheelchair users 
reflects available experience with accessible OTRB commuter services 
offered by one transit operator, Denver RTD, this low estimate relies 
more on experience with longer-distance intercity service that would 
not have had any significant commuter-type patronage (in particular the 
programs by Canada Coach Lines) and the transit experience of Golden 
Gate Transit and the New York City Transit. Both estimates involve a 
modest reduction in projected demand, compared to the regulatory 
assessment prepared in connection with the NPRM.

Financial Burdens/Loss of Marginal Routes

    A basic argument the bus industry made against the NPRM's approach 
was that it was too costly and imposed undue financial burdens on the 
industry, with negative effects not only on the companies themselves 
but on passengers who travel on marginal, especially rural, routes. 
Commenters emphasized the financial fragility of the industry generally 
and individual companies, noted that many companies typically have low 
profit margins and expressed the concern that the costs of 
accessibility proposed in the NPRM would drive some companies out of 
business. They mentioned the historical trend toward shrinking 
passenger volume and points served by intercity buses. They said that, 
in a number of respects, the NPRM's regulatory assessment understated 
the actual costs imposed on carriers. In this context, commenters 
argued that the actual costs imposed on carriers constituted an undue 
financial burden, because they would hamper the rebuilding of the 
capital investment of bus companies, endangering their attempts to 
revitalize the passenger bus business.
    Bus industry commenters also provided lists of points that they

[[Page 51681]]

thought could well lose service if they were required to obtain 
accessible buses. The reasoning of the operators is that, in order to 
cover compliance costs, they would have to eliminate economically 
marginal routes, since they could not afford to raise fares across the 
board and remain competitive. Greyhound listed 144 points it said would 
face the loss of intercity service. Combining this projection with 
information from other carriers, an industry association projected that 
278 points would lose all service, and another 378 would lose frequency 
of service or connections. The commenter projected that the loss of 
service to these points could result in an annual loss of 208,000 
passenger trips, a considerably larger number of trips than the 
stimulated demand that the regulation would create. This commenter 
believed that the service would not disappear overnight, but rather 
incrementally as old equipment needed to be replaced by more expensive, 
accessible new equipment that companies would choose not to acquire.
    Disability community commenters pointed to the TEA-21 subsidy as 
mitigating financial impacts on carriers. They also suggested that 
industry comments seriously underestimated the operating costs of an 
on-call system, which were continuing, in contrast to the discrete 
capital costs of accessible buses. They also criticized the objectivity 
and data in industry cost projections. Every business in America has to 
comply with ADA accessibility mandates, they said, generally without 
subsidy, and bus companies could do so as well.

DOT Response

a. Financial Situation of Fixed-Route Carriers
    Throughout the early 1990s, most intercity carriers experienced 
financial difficulties, to a great extent as a result of Greyhound's 
1990 drivers' strike and bankruptcy, plus two different Greyhound plans 
to restructure service. Many other OTRB carriers' earnings are very 
dependent on the state of Greyhound's service, over 30 percent of which 
involves interlining with other carriers. In 1996 and 1997, all but a 
few Class I intercity carriers began to creep into the black, or break 
even.
    There is naturally some variation in the financial strength of 
different carriers. For example, the Class I financial reports (for the 
year 1997) filed with DOT's Bureau of Transportation Statistics show 
privately held Peter Pan Lines (Massachusetts), much smaller than 
Greyhound but the next-largest carrier in terms of regular-route 
intercity revenues and its effective competitor in certain heavy-
density Northeastern markets, generating operating expenses (before 
interest and taxes) at a rate of 86 percent of revenues as contrasted 
with 97 percent for Greyhound Lines itself.
    However, when viewed as a whole, the industry's financial position 
continues to center on Greyhound, the extensive debt financing of which 
generates an annual interest expense that is still substantial compared 
to operating earnings. Greyhound and its consolidated subsidiaries have 
incurred net losses in all but one year since the driver's strike, 
ranging from a high of $77.4 million (1994) down to $6.6 million 
(1996). Their loss for 1997 was $16.9 million although they would have 
reported $8.4 million in positive net income had it not been for an 
extraordinary expense charge taken that year in connection with a re-
financing transaction that spread their required debt repayments 
further out into the future.
    According to Greyhound, in 1995, 1996 and 1997, it posted revenue 
and ridership increases (the first since 1991) and has realized a 
dramatic turnaround by streamlining operations, lowering fares, hiring 
more drivers, and adding long-haul services. It is beginning to restore 
infrastructure, and reduce fleet failure rates and high maintenance 
costs, by replacing an aging fleet of 15-20-year-old buses. It has also 
increased its package-express business, in part because of the UPS 
strike in August 1997. In July, 1997 Greyhound bought Carolina 
Trailways for $25.3 million cash, debt assumption and stock, of which 
$20.4 million was cash, and in August of that year purchased Valley 
Transit for $19 million in cash. During 1996-97, Greyhound leased 384 
new buses (without lifts) financed by seven institutions. It has also 
committed to acquire 80 new lift-equipped buses through 1999, of which 
20 have already been ordered. Greyhound raised fares by four percent 
last year on selected routes (while increasing their overall revenues, 
according to filings the company made with the Securities and Exchange 
Commission), and also made selected fare reductions on other route 
segments.
    Thus, Greyhound appears to be headed for recovery along with most 
of the other Class I intercity/regional carriers. Some small carriers 
continue to face financial hardships and cannot afford to replace aging 
fleets. The requirements of the final rule for small operators, 
however, should significantly mitigate regulatory impacts on them.
b. Reductions of Passenger Traffic and Points Served
    Commercial intercity carriers are also concerned about their 
limited ability to ``pass on'' to current passengers the costs of 
accessibility improvements. This can be expressed in economic analysis 
terms as the elasticity of overall demand for their service with 
respect to average price charged. The Department is not assuming that 
fares could be raised by an amount sufficient to completely cover the 
costs of compliance with the final rule by current OTRB operations in 
all U.S. markets without any effect at all on existing patronage. By 
definition, this would demonstrate perfect inelasticity of demand over 
that range of price change, which industry representatives suggest is 
not the case.
    The economic model used in the regulatory assessment focuses on an 
elasticity of demand of -1.0. If this theoretical assumption is 
correct, and Greyhound needed to add about 2.1 percent to its ticket 
prices to wholly recover compliance costs of the rule, it could lose 
2.1 percent of its revenues, which could be approximated as 2.1 percent 
of passenger trips being lost. Subject to appropriations, the TEA-21 
subsidy would cut these figures by about a third. For Greyhound, this 
(i.e., the subsidized price increase level of 1.33%) would amount to a 
potential loss of 233,000 passenger trips out of 17.5 million. 
Extrapolating to the 40 million carried by large intercity carriers in 
1997, this would amount to a 532,000 passenger trip decline. The 
offsets for stimulated traffic would range from about 53,000 to 80,000 
passenger trips for Greyhound, and 85,000-127,000 passenger trips for 
the fixed-route system as a whole.
    To the best of the Department's knowledge, there are no stated 
preference or revealed preference studies of the actual impacts of 
price rises in intercity bus travel that would empirically confirm or 
disconfirm the hypothesis derived from this model that a 1.3 percent 
price increase would have these effects. There is some room for 
question given the low absolute price increases involved. For example, 
taking into account the TEA-21 subsidy, the compliance cost of the rule 
would add 46 cents to the cost of Greyhound's $34.00 average fixed-
route ticket. In the real world, would a transit-dependent consumer of 
an average intercity bus trip decline to take the trip because the 
ticket cost $34.46 instead of $34.00? (We note that Greyhound recently 
raised fares by about four percent on selected routes.) There is a 
considerable

[[Page 51682]]

uncertainty surrounding this model which makes it difficult to say with 
confidence what the actual magnitude of the effects of a price increase 
would be, and a certain degree of caution in using these estimates is 
in order.
    With respect to cutting marginal routes, Greyhound cites a list of 
19 marginal routes which could lose service. The Greyhound System 
Timetable for June 24, 1998, shows that the 144 points on these 19 
routes represent 6 percent of the system's 2400 total points and 1.5 
percent (on the basis of July operations) of their 1997 bus-miles. 
However, 45 of the 144 points were not listed in the timetable as 
having any agency service at all. Two routes, encompassing 27 points, 
are currently subsidized by the state of Pennsylvania.
    An industry association comment enlarged the list of single-service 
points that might be abandoned to 287, but we have reason to question 
some them. Most of the routes cited by this comment are served by small 
carriers, which have the option of buying used buses instead of 
abandoning the routes. The ABA projection appears not to take this 
possibility into account. In addition, the small operator provisions of 
the final rule are likely to lower significantly the number of 
potential number of routes cut by small operators.
    Moreover, as industry comments themselves pointed out, there has 
been marked shrinkage of the number of passengers and number of points 
served by the intercity bus industry in recent decades. This appears to 
have been caused by changes in the economy, passengers' travel 
preferences, and, to an extent, by management decisions of bus industry 
members. Certainly accessibility requirements had nothing to do with 
it. It is likely, in the future as in the past, that broader economic 
circumstances will have much more to do with the financial health and 
route structure of bus companies than any specific requirement of this 
or any other regulation.
c. Overall Costs.
    The Department's estimates of overall compliance costs of the rule 
are set forth in the tables below. They are summarized from material in 
the Department's regulatory assessment. Net costs are calculated by 
subtracting the projected revenues from stimulated demand generated by 
service complying with the rule from the overall, or gross, costs. All 
costs are year 2000 present value discounted costs. The following 
tables do not include the effect of the TEA-21 subsidy or other 
financial assistance available to bus companies.

                       Overall Gross and Net Costs
                     [Millions of Year 2000 dollars]
------------------------------------------------------------------------
                                      Gross costs          Net costs
                                 ---------------------------------------
                                   22-Year   Annual    22-Year   Annual
------------------------------------------------------------------------
Fixed-route.....................  205-254   19-23     152-219   14-20
Charter/tour....................  38-80       3-7     16-66       1-6
                                 ---------------------------------------
      Total.....................  242-334   22-30     168-285   15-26
------------------------------------------------------------------------


              Costs Expressed as Costs per Stimulated Trip
                           [Year 2000 dollars]
------------------------------------------------------------------------
                                            Gross costs      Net costs
                                               basis           basis
------------------------------------------------------------------------
Low Estimate of Stimulated Trips........     67.91-93.47     54.23-79.71
High Estimate of Stimulated Trips.......     45.01-61.95     31.15-48.09
------------------------------------------------------------------------

d. Conclusion
    The conclusion the Department draws from its review of the economic 
issues in the rulemaking is that, while there are identifiable economic 
impacts on the bus industry, these impacts are not so great as to 
preclude the Department reasonably from requiring the accessibility 
requirements of the final rule. The ADA does not immunize private 
parties, including bus companies, from some of the burdens of ensuring 
nondiscrimination for people with disabilities. The economic impacts of 
the rule are not sufficient to constitute an ``undue burden'' on bus 
companies. Given the generally improving financial health of the fixed-
route bus industry, the relatively modest net, and even gross, costs of 
the rule are very unlikely to have devastating effects on the industry, 
of a magnitude that could be fairly regarded as unduly burdensome. They 
are necessary, ``due'' burdens of achieving the objectives of the ADA 
by providing meaningful, nondiscriminatory service.
    In the context of industry arguments about allegedly undue 
financial burdens and commenters' claims that the OTRB industry is 
unfairly impacted by Federal requirements, compared to other modes, we 
believe it is useful to review the sources of direct and indirect 
Federal financial assistance authorized for the OTRB industry. Some of 
this assistance is specifically directed at making OTRBs accessible, 
while other funding sources represent general public subsidies to the 
industry. The following table summarizes the financial assistance 
applicable to FY 1999 through FY 2003:

                          [Dollars in millions]
------------------------------------------------------------------------
                                                   Annual
                    Program                       average       Total
------------------------------------------------------------------------
Rural Transportation Accessibility Incentive
 Program (TEA-21, Sec. 3038)..................       *$4.86       *$24.3

[[Page 51683]]

Non-Urbanized Area Formula Program, intercity
 bus 15% set-aside (49 U.S.C. Sec.  5311).....        *31.4       *157.0
Motor fuel tax exemption......................        *33.5       *167.5
                                               -------------------------
      Total...................................         69.8       348.8
------------------------------------------------------------------------
 *--authorized funds.

    The Rural Transportation Accessibility Initiative is the TEA-21 
subsidy dedicated to OTRB accessibility. This program authorizes $24.3 
million (including $17.5 million specifically for fixed-route 
operators) in guaranteed funds to subsidize up to 50 percent of capital 
and training costs of OTRB accessibility.
    Since 1992, states have been required to make funds available for 
fixed-route intercity bus transportation. Each state is required to 
expend 15 percent of the funds received through FTA's Non-Urbanized 
Area Formula Program for this purpose. FTA guidance specifies that 
these funds may be used to purchase vehicles or vehicle-related 
equipment such as wheelchair lifts. The guaranteed TEA-21 funding 
available for the 15 percent set-aside will more than double between FY 
1997 and FY 2003, from $17 to $36 millon per year. The 15 percent set-
aside can be waived only if a state's governor certifies that the 
state's intercity bus service needs are being adequately met. This 
program provides states a means to respond to concerns that costs 
associated with accessibility could result in the termination of rural 
bus routes.
    As noted above, OTRBs have a significant fuel tax break. OTRBs are 
exempt from all but three cents of the Federal Motor Fuels Tax on 
diesel and other special fuels. The value of this exemption is 21.3 
cents per gallon,, amounting to an annual tax saving for the industry 
of $33.5 million (based on 1996 Federal fuel consumption statistics).
    In addition to the sources of assistance shown in the table, there 
are two additional sources of Federal funding for OTRB services. While 
these funding sources do not provide dedicated funding for OTRB 
services, and other projects compete for funds, state and local 
officials who are concerned about the continuation or expansion of OTRB 
services (e.g., on rural or marginal routes) can take advantage of 
them.
    First, a new provision in TEA-21 expands the highway Surface 
Transportation Program (STP) eligibility to fund private intercity bus 
capital expenses (TEA-21 section 1108). This amendment gives states two 
additional ways of using STP funds: directly, relying on the new TEA-21 
language adding intercity bus terminals and equipment as eligible 
expenditures, or indirectly, through transfers of STP funds to the FTA 
Non-Urbanized Area Formula Grant Program, described above. The STP 
program averages $5.5 billion annually during the TEA-21 authorization 
period. Second, the Congestion Mitigation and Air Quality (CMAQ) 
program's funds are eligible for support of OTRB service. The CMAQ 
program averages $4.1 billion annually during the TEA-21 authorization 
period.
    The Department emphasizes that these sources of Federal financial 
assistance are not essential to the Department's ability, as a matter 
of law or policy, to impose the nondiscrimination and accessibility 
requirements of the final rule. Requiring compliance with civil rights 
requirements like those of the ADA is not contingent on the 
availability of such assistance. However, in assessing the impact of 
this rule, it is fair to note the fact that such assistance is 
available. We note also that the amount of this assistance is well in 
excess of the total compliance costs of the rule.
    Notwithstanding the modest total costs of the rule. and the 
considerable Federal financial assistance available, the Department is 
concerned about the overall economic impact of the regulation and its 
impact on particular companies. The Department is acting on this 
concern in several ways. These include the special provision for small 
mixed-service operators, the time extension mechanism for fleet 
accessibility deadlines for large fixed-route carriers, and the absence 
of a fleet accessibility requirement for small fixed-route operators 
and demand-responsive operators, discussed above.
    In addition, with respect to small fixed-route operators, the 
Department is adding another provision designed to reduce potential 
economic impacts. Rather than obtaining accessible buses, a small 
fixed-route operator can commit to providing equivalent service to 
passengers with disabilities. This service, which has to meet existing 
part 37 criteria for equivalent service, must also provide service to a 
passenger in his or her own wheelchair. The Department is not 
prescribing the form of this equivalent service, but it could involve 
an alternative vehicle (e.g., an accessible van) that the operator 
would provide on short notice to carry a passenger where that passenger 
would have gone on the operator's bus.
    The Department is also adding a regulatory review provision to the 
final rule. This review provision commits the Department to conduct 
reviews of the provisions of the rule for demand-responsive and fixed-
route service, including data concerning accessible buses, advance 
notice service, costs and ridership in 2005-2007. This review will 
allow the Department to make appropriate changes in any provisions of 
the regulation, based on actual experience concerning costs, service 
and other matters. We note that comments from the bus industry 
supported data collection for this purpose and the idea of reviewing 
regulatory requirements after some time had passed (though bus industry 
commenters would have preferred to wait until after such a review 
before requiring fully accessible fixed-route service). Aside from this 
review provision, the Department will continue to evaluate relevant 
data about implementation of the rule, its costs and other effects, 
available funding, and the success of bus companies at providing 
accessible service as part of our ongoing oversight of ADA compliance.

Environmental Issues

    Bus industry commenters made two related environmental arguments. 
The premise of both arguments is that bus companies will respond to the 
costs of compliance with the rule by reducing marginal, especially 
rural, routes. Significant numbers of points and passengers will lose 
intercity bus service as a result, the commenters assert.

[[Page 51684]]

    Since intercity bus passengers are disproportionately low-income 
persons, including members of minority groups, the industry argued that 
Department should consider the ``environmental justice'' effects of the 
proposed rule under Executive Order 12898 and a DOT Order implementing 
it. In addition, industry comments asserted that reductions in bus 
routes would lead more people to drive their cars on trips, increasing 
air pollution. In addition, there would be increased fuel usage because 
of heavier equipment on buses, needing to keep buses running longer at 
stops to operate the lifts, etc. These factors should be the subject of 
an environmental impact statement, pending which the Department should 
withdraw the rulemaking.
    DOT Response: As noted above, the premise of these arguments is 
that significant adverse environmental and environmental justice 
effects will flow from the Department's accessibility requirements, 
since companies will respond to these requirements by cutting routes. 
This premise is flawed in two important respects. First, the economic 
effects of the final rule, particularly but not only with respect to 
small entities, are greatly mitigated by the variety of steps the 
Department has taken in response to comments on the NPRM and the 
significant financial assistance available to operators. These 
provisions are likely to reduce significantly the extent to which many 
companies would choose to respond to the requirements of the rule by 
reducing service. Absent the route reductions, the environmental and 
environmental justice impacts alleged by industry comments effectively 
disappear.
    Second, route reductions, and any consequent environmental or 
environmental justice effects, are not mandated by the final rule. To 
the extent they occur at all, route reductions are the result of free 
choice by the bus companies themselves. If a bus company's costs 
increase for any reason (e.g., higher capital costs, high debt service, 
increases in fuel prices, increases in labor costs, as well as 
regulatory compliance), the company must decide how to deal with the 
increased cost. There is wide variety of potential responses. Does the 
company raise fares? Does it reduce service? Does it accept a lower 
profit margin? Does it seek additional subsidies? When a company 
chooses one or a combination of responses to increased costs, its 
choice is likely to have consequences for its customers. These choices 
are the proximate causes of the consequences to customers.
    One point that disability community comments made, and bus industry 
comments did not emphasize, is that people with disabilities are 
disproportionately poor. If they live in rural areas, they are likely 
to have even fewer transportation alternatives than other persons. This 
group, which has traditionally been underserved by the bus industry, 
would receive service they can use under this rule, often for the first 
time. It is appropriate, in an ADA rulemaking, to pay particular 
attention to the needs of people with disabilities in determining what 
policy to pursue.
    The Department will place an environmental assessment (EA) in the 
docket for this rulemaking. It is our judgment that the environmental 
effects of the rulemaking are insufficient to call for the preparation 
of an environmental impact statement (EIS). The EA will address the 
industry's air quality arguments in more detail. We would note a few 
points here, however. The primary air quality argument made by the 
industry is that people who lose bus availability because of industry 
decisions to cut service will take trips by car. This forgets that 
people often ride buses precisely because they are transit dependent 
(e.g., according to information in the docket, 44 percent of intercity 
bus passengers do not own a car and 60 percent do not own a car capable 
of making a 500-mile trip). This substantially limits the extent to 
which ex-bus passengers are in a position to substitute car trips. In 
addition, the industry arguments with respect to running buses longer 
to operate lifts and therefore increase emissions appear to ignore 
industry commenters' assertion that, under the industry's favored 
approach, there would no fewer lift boardings than under the 
Department's requirements. Moreover, there would need to be some 
``deadhead'' trips in order to meet 48-hour advance reservations. These 
additional trips would probably add to the total of bus emissions.
    The Department finds that this rule has no significant 
environmental impacts that would warrant either the preparation of a 
full EIS or the withdrawal of the rulemaking.

Rest Stops

    The NPRM proposed that operators of accessible buses would have to 
permit passengers with disabilities to use the lift to get off and back 
on the bus at rest stops. It proposed that operators of inaccessible 
buses would have to provide deboarding and reboarding assistance to 
passengers with disabilities at rest stops, as long as doing so would 
not unreasonably delay the trip.
    Disability community commenters strongly opposed the proposal 
concerning inaccessible buses. They said the ``unreasonable delay'' 
language did not protect the rights of passengers to have 
nondiscriminatory access to rest stop facilities. Operators should not 
have the inhumane discretion to determine when, or for how long, a 
passenger with a disability can use a restroom, they said. Moreover, 
all or some rest stop facilities themselves should be required to be 
accessible, so that passengers did not get off buses only to confront 
an inaccessible restroom.
    Commenters proposed two requirements beyond those discussed in the 
NPRM. First, while acknowledging that the ADA does not permit the 
Department to require the installation of accessible restrooms on buses 
if doing so will result in the loss of seats, some comments suggested 
that many operators now purchase buses with larger seating capacities 
than Congress contemplated in 1990 when it enacted the ADA. One could 
install an accessible restroom and have no fewer seats than Congress 
intended a bus to have at that time, they said, complying with the 
intent of the statute.
    Second, with respect to buses with inaccessible restrooms traveling 
express routes with long intervals between rest stops, operators should 
be required to make unscheduled rest stops to accommodate passengers 
who cannot use the on-board restroom. This is the only way, commenters 
said, to provide necessary and nondiscriminatory service to passengers 
with disabilities, who otherwise would unfairly have to take 
uncomfortable steps (such as dehydrating themselves before a trip) to 
adjust to the denial of restroom facilities.
    Bus industry commenters generally supported the NPRM proposal. They 
asked for additional guidance on how to determine whether a delay was 
unreasonable, suggesting that schedule disruption should be an 
important consideration. These commenters strongly opposed the 
disability community request for unscheduled rest stops (or more 
frequently scheduled rest stops) on express bus runs. They said it 
would fundamentally alter the nature of express service by creating 
delays that would make it very difficult to meet schedules, causing 
chaos with respect to interline connections, and reducing 
competitiveness with other modes of transportation. Industry comments 
also took the view that most rest stops were either accessible or 
becoming accessible,

[[Page 51685]]

and that bus operators should be able to make use of those that were 
not on the same basis as other persons or businesses.
    DOT Response: When the final rule's requirements begin to apply to 
an operator, that operator will have to ensure that an accessible bus 
(or, in some cases, equivalent service) will be provided to passengers, 
either routinely or on 48 hours' advance notice. For this reason, the 
need to provide boarding assistance to paasengers at rest stops should 
occur only in rare cases (e.g., when there are more wheelchair users on 
a bus than there are securement locations). Situations involving 
transportation of wheelchair users on inaccessible vehicles should 
occur rarely if at all after 2000-2001.
    The Department is persuaded by disability group comments that 
operators transporting disabled passengers have an obligation to assist 
passengers on and off buses at rest stops, even on such rare occasions. 
To stop at a restroom or a restaurant, allow everyone else to get off 
the bus and use the facilties, but refuse to assist wheelchair users or 
other persons requiring boarding assistance in leaving the bus, would 
treat the latter class of passengers differently from all others based 
on their disability. It is difficult to square such different treatment 
with the language and purposes of the ADA.
    The Department is not persuaded by disability group comments that 
we have the discretion to require accessible lavatory units on OTRBs as 
long as it will not result in fewer seats than on a typical 1990 OTRB. 
It is better to read the statute to preclude a requirement for 
accessible restrooms in any situation in which installing such a unit 
would reduce the number of seats to less than it would otherwise be. If 
a 55-seat capacity bus would have space for only 51 seats after an 
accessible restroom is installed, we believe that this is a seat loss 
for the bus even though more seats remain available than on a 1990-
model 47 passenger bus.
    Rest stops themselves are Title III (or sometimes Title II) 
facilities for ADA purposes. Many, though not all, are or will become 
accessible. As a general matter, we do not believe it is fair to 
require organizations who bring people to these facilities to be 
responsible for the facilities' accessibility. It would be going too 
far, in our view, to mandate that bus companies stop only at facilities 
that are actually accessible. Nevertheless, there are some situations 
in which it is appropriate to impose obligations on bus operators. For 
example, if the bus company owns or controls a facility (e.g., a bus 
station) and uses the facility as the place where it makes rest stop 
services available to passengers, then use of the facility effectively 
becomes part of the bus company's package of transportation services. 
This is also true if the bus company contracts with a facility to 
provide rest stop services (e.g., a tour bus company contracts with a 
restaurant as a place where the bus will make a food and restroom 
stop). In these cases, it is reasonable to insist that the bus company, 
on its own or through a contractual relationship, ensure the compliance 
of the facilities with ADA requirements.
    Unscheduled rest stops are a difficult issue. On one hand, if a bus 
takes three hours to go between Points A and B with no stops and there 
is an inaccessible restroom on board, non-disabled passengers have the 
chance to go to the bathroom over the three-hour period and disabled 
passengers do not. This facially different treatment raises a 
discrimination issue under the ADA. On the other hand, if a bus making 
such a trip is scheduled to interline with another company's bus at the 
next destination, and incurs an unscheduled 30-minute delay because of 
a rest stop request, the schedule and transportation for other 
passengers could be disrupted. Such disruptions, and other effects 
mentioned in industry comments, could be more than trivial.
    The Department believes that, since both sides of this issue have 
merit, it is reasonable to find a middle-ground solution. The final 
rule will require bus companies to make a good faith effort to 
accommodate the requests of passengers with disabilities for an 
unscheduled rest stop, but will not require the bus company to accede 
to such a request when doing so would unreasonably delay the trip or 
disrupt service for other passengers. The bus company would retain 
discretion with respect to making the unscheduled stop, but would owe 
the passenger an explanation for a decision not to make the stop.

Other Issues

a. Interlining
    Disability community commenters raised the issue of interlining. 
When a passenger buys a ticket or makes a reservation through one 
carrier for service that involves transfer to another carrier's bus, 
commenters said, the carrier should have to ensure that accessible 
transportation is provided for the entire trip, so no one is stranded 
at a transfer point. While not speaking of this issue directly, some 
bus industry comments did allude to their ``service-based approach'' 
being able to handle this matter.
    To provide clarity concerning interlining, the Department has added 
a section giving the carrier making the arrangements for the interline 
trip the responsibility for communicating to other carriers involved 
about the need for accessible service. Each carrier would be 
responsible for actually providing the service for which it is 
responsible, however.
b. Interim Service
    There were few comments concerning the interim service provisions 
of the NPRM. Bus companies said they could comply, since the interim 
provisions were similar to the service-based approach they support. 
Disability community commenters said that the provisions were 
acceptable on an interim basis, since full fixed-route accessibility 
would be required later. While there were few comments that directly 
pertained to the time frames for providing interim service, carrier 
comments emphasized the readiness of the carriers to provide ``service-
based'' transportation in the near future. Given that there are two or 
three years between now and the application dates of the rule it is 
reasonable to conclude that an additional two years is not necessary 
for carriers to provide interim service in accessible buses. In 
addition, retaining the two-year delay would mean that, for passengers 
of most of the operators who are small entities, it would be five years 
before they could count on receiving accessible service. Consequently, 
the final rule reduces the proposed phase-in period in half and calls 
on fixed-route carriers to begin 48-hour advance notice interim service 
in October 2001 or 2002.
c. Training and Maintenance
    Disability community comments emphasized the importance of training 
of personnel and maintenance of accessible features. There were few 
comments on these subjects from bus industry commenters. Training and 
maintenance requirements were proposed in the NPRM. The final rule 
clarifies the content of the training requirements and specifies the 
lift maintenance requirement, which is similar to that for other modes.
d. Discriminatory Actions
    Disability community commenters suggested that certain alleged 
practices of the bus industry under the current interim regulations 
should be proscribed (e.g., using traveling companions or paramedics to 
assist passengers' boarding, without the passengers' consent; 
unjustified denials

[[Page 51686]]

of service). We have added a provision enumerating several prohibited 
practices. We would note that most of the occasions for the problems to 
which this section refers should be much reduced when the interim 
service and ultimate accessibility requirements of the new rule are 
implemented, since accessible vehicles will be used for virtually all 
trips for passengers with disabilities beginning October 2001/2002.
e. Additional Passengers Using Wheelchairs
    In addition, in response to some comments from both disability 
community and bus industry parties, we have specified that, if there 
are more wheelchair user passengers than securement locations on a 
given bus, ``extra'' passengers would be given the opportunity to 
receive boarding assistance with a transfer to a vehicle seat. If the 
passenger declined this offer, the bus company would not have to 
provide transportation to the passenger on that run.
f. Technical Accessibility Standards
    Bus manufacturers and some industry commenters provided technical 
comments on the proposed bus accessibility standards proposed jointly 
by DOT and the Access Board. The Department is in agreement with the 
responses to the Access Board to these comments in its rulemaking 
document (e.g., with respect to door height and lighting issues), also 
published today, and we are adopting the Access Board's guidelines as 
an amendment to 49 CFR part 38. These standards determine what an 
accessible OTRB looks like for purposes of subpart H of part 37.
g. Definition of an OTRB
    A few bus industry commenters expressed the concern that companies 
might seek to avoid requirements by acquiring buses that did not fit 
the statutory and regulatory definition of an OTRB. If any company 
actually contemplates such a tactic as a means of avoiding ADA 
accessibility requirements, it would not achieve its objective. A bus 
that does not fit the definition of an OTRB is simply a vehicle subject 
to the normal accessibility requirements of Title III of the ADA and 
part 37. Such a bus would not benefit from the special provisions 
applicable to OTRBs. For example, a fixed-route provider buying a new 
non-OTRB would have to buy an accessible bus. A demand-responsive 
provider buying a new non-OTRB would have to buy an accessible bus or 
provide equivalent service.

Section-by-Section Analysis

Section 37.3--Small Operator Definition

    This section defines a Class I operator as a large operator. (Class 
I carriers are defined as carriers with $5 million more in gross annual 
operating revenues, adjusted by the current Producer Price Index of 
Finished Goods, compared to 1986 as a base. The current figure is $5.3 
million.) Anyone else is a small operator. If companies are affiliated, 
in the sense of Small Business Administration size regulations (see 13 
CFR Part 121), their revenues are added together for purposes of 
determining size. For example, a group of small companies owned or 
controlled in common by a holding company or conglomerate would be 
viewed as affiliates, whose revenues would be added together to 
determine whether they were treated as a small or large operator for 
purposes of the rule.

Section 37.181  Application Dates

    This rule will become effective in October 1998. It will begin 
applying to large entities in October 2000 and to small entities in 
October 2001.

Section 37.183  Purchase or Lease of New OTRBs by Operators of Fixed-
Route Systems

    Beginning October 2000, buses purchased or leased by large fixed-
route providers must be accessible. An accessible bus is one that meets 
Access Board/DOT standards (i.e., in 49 CFR Part 38). This requirement 
applies to buses delivered after that date, even if they were ordered 
earlier. Small fixed-route providers must comply with the same 
requirement beginning October 2001. However, instead of complying with 
this requirement, a small fixed-route operator can choose to provide 
equivalent service to passengers with disabilities, in a vehicle (it 
may be an alternative vehicle) that permits a wheelchair user to ride 
in his or her own mobility aid. Equivalent service is defined by 
Sec. 37.105. Essentially, equivalent service is service that in terms 
of time, destination, cost, service availability etc. is parallel to 
that provided non-disabled passengers. Fixed-route operators are not 
required to purchase accessible used buses. Retrofitting existing buses 
for accessibility is not required.

Section 37.185  Fleet Accessibility Requirement for OTRB Fixed-Route 
Systems of Large Operators

    Large fixed-route operators must ensure that 50 percent of the 
buses used for fixed-route service are accessible by October 2006. They 
must ensure that 100 percent of the buses in these fleets are 
accessible by October 2012. However, operators can ask for a time 
extension past these dates. The Department will consider such requests 
based on the three factors listed in the rule. A bus company that had 
disproportionately ``stocked up'' on inaccessible buses between October 
1998 and October 2000 or that had demonstrated poor compliance with the 
rule would not be in a position to make a strong case for a time 
extension.

Section 37.187  Interline Service

    This section requires communication among different bus companies 
involved in an interline trip. The first responsibility falls on the 
carrier with whom the passenger initially makes a reservation or buys a 
ticket for an interline trip. It must communicate with the other 
companies involved with the trip, who have a responsibility to maintain 
open channels of communication and pay attention to communications they 
receive. The other companies retain full responsibility for actually 
providing service to the customer on their legs of the trip.

Section 37.189  Service Requirement for OTRB Demand-Responsive Systems

    Beginning October 2001 for large entities, and October 2002 for 
small entities, demand-responsive operators must provide an accessible 
bus to any passenger who requests it 48 hours in advance. There is no 
requirement on demand-responsive operators to acquire their own 
accessible buses and no fleet accessibility requirement. Rather, when a 
timely request is made, the operator must find a bus and get it to the 
location where it is needed. Even if the request is made closer to the 
time of travel than 48 hours, the operator must make a reasonable 
effort to locate an accessible bus and provide it to the passenger.
    The rule notes that an operator need not fundamentally alter its 
reservation policies or displace other passengers to comply with this 
requirement. The examples in the rule text illustrate how this 
principle works.

Section 37.191  Special Provision for Small Mixed-Service Operators

    This provision applies only to a subset of small operators. If a 
small operator uses 25 percent or less of its buses for fixed-route 
service, with the rest being used in demand-responsive service, it can 
provide 48-hour advance reservation service for everything it does, 
fixed-route as well as demand-responsive. It would not have to obtain 
accessible buses of its own, beyond the extent necessary to 
successfully provide

[[Page 51687]]

advance notice service. This exception to the normal rule that advance 
notice service is not permitted for fixed-route service is placed in 
the rule in recognition of the special situation of such small mixed-
service operators. Use of this provision by small mixed-service 
operators is optional. Their fixed-route service can also comply with 
this subpart by acquiring accessible buses or providing equivalent 
service, as provided in Sec. 37.183(b).

Section 37.193  Interim Service Requirements

    Beginning October 2001 or 2002, as applicable, a fixed-route 
operator must provide 48-hour advance reservation service. The operator 
must keep providing this service until and unless its fixed-route fleet 
consists entirely of accessible buses. For example, if a small operator 
never has a 100 percent accessible fleet, because it continues to 
purchase only used buses, then it must meet this interim requirement 
indefinitely, at least for that part of its service that is not fully 
accessible. For example, if a small operator has two routes, and one 
uses accessible buses for all trips and the other does not, interim 
service would be maintained only for the latter route.

Section 37.195  Purchase or Lease of OTRBs by Private Entities Not 
Primarily in the Business of Transporting People

    This section states, for clarity, the ``private not-primariles'' 
are subject to the same rules as ``private primarilies'' for OTRB 
accessibility purposes. The NPRM stated somewhat different requirements 
for the two categories, and there were no comments on the subject, but 
for the final rule it made more sense to make the requirements 
parallel.

Section 37.197  Remanufactured OTRBs

    There were no comments on this section of the NPRM, which is 
retained without change. It is drawn from remanufactured bus 
requirements elsewhere in part 37. We did add a note that 
remanufacturing an OTRB as an accessible bus would be required only in 
situations where a new OTRB would have to be accessible.

Section 37.199  Compensation for Failure to Provide Required Vehicles 
or Service

    This is an accountability mechanism for advance notice and 
equivalent service. If an operator fails to provide the required 
service, then the operator must pay compensation to the passenger. This 
is not a civil penalty paid to the Department, but a sum sent directly 
to the passenger whose travel plans were disrupted. No administrative 
procedure is needed. For example, a passenger requests an accessible 
bus on Monday for a trip taking place Thursday. On Thursday, is the 
accessible bus at the appointed place and does its accessibility 
equipment operate to allow the passenger to complete his or her trip 
successfully? If yes, then there is no problem. If no, then the 
operator pays the compensation to the passenger within seven days.
    The reason for the failure doesn't matter. If the operator forgot 
to obtain an accessible bus, or if the operator made a good faith 
effort and couldn't find one, or if the operator found a bus but the 
lift is broken, the result is the same. Compensation must be paid. Only 
in rare situations in which no one receives transportation, for reasons 
beyond the operator's control (e.g., a blizzard shuts down the East 
Coast, and nothing moves for two days; an accessible bus is on the way 
to make a timely pickup of passengers, is involved in a crash, and 
never makes it to the pickup point), would the operator be excused from 
paying compensation.
    The compensation scheme is graduated. The amount of compensation 
increases with each failure to provide transportation. For occasion 1 
with passenger A, the company pays $300. For occasion 2 with passenger 
B, the company pays $400, on up to $700 for the fifth and subsequent 
such incidents in the company's history. To help prevent the payment of 
compensation being regarded as simply a cost of doing business in lieu 
of compliance, the rule notes that payment of compensation does not 
immunize operators from ADA enforcement actions (e.g., litigation by 
the Department of Justice).
    We also note that refunds of fares paid by passengers with 
disabilities for trips not taken as a result of an occurrence 
triggering the compensation requirement do not reduce the compensation 
requirement for carriers. For example, suppose a passenger has paid $50 
in advance for a ticket, cannot travel because the operator fails to 
provide an accessible bus in a timely manner, and receives a $50 refund 
from the operator. If the operator was responsible for paying $300 
compensation in this situation, the amount of compensation would still 
be $300, not $250.

Section 37.201  Intermediate and Rest Stops

    Whenever any OTRB makes an intermediate or rest stop, at which 
passengers have the opportunity to get off the bus and use the 
facilities that are available, passengers with disabilities must have 
the opportunity to use the rest stop facilities. In the case of an 
accessible bus, this means operating the lift mechanism to allow a 
wheelchair user to get off and back on the bus. Under the final rule, 
there should be few if any situations in which a passenger is traveling 
in an inaccecssible bus, such that other means of boarding assistance 
are necessary. (There could be situations in which boarding assistance 
is needed for a passenger who has transferred to a vehicle seat because 
securement locations are filled with other passengers.) In any case, 
the bus company is responsible for providing whatever equipment and 
personnel are needed to complete these tasks and taking the time 
necessary to do so.
    When a bus is making a lengthy express run (i.e., three hours or 
more without a stop) and is equipped with an inaccessible restroom, 
ambulatory passengers can go to the bathroom but many passengers with 
disabilities cannot. In this situation, if such a passenger with a 
disability makes a request for an unscheduled rest stop (whether at the 
beginning of the trip or during the trip), the bus operator must make a 
good faith effort to accommodate the request. Because an unscheduled 
rest stop can potentially disrupt schedules and connections, however, 
the rule does not require the bus company to make the unscheduled rest 
stop. This decision is discretionary with the bus company. In a 
situation where making the unscheduled rest stop would not unduly 
disrupt schedules or connections, it would fair to expect the stop to 
be made, however.
    Bus companies sometimes, but not always, have a direct connection 
with the facilities at which rest stops are made. When the bus company 
owns, leases, controls, or has a contractual relationship with the 
facility for rest stop purposes, then provision of the rest stop 
facility is part of the service which a ticket buyer purchases. In 
these situations, the bus company has an obligation to ensure that the 
facilities meet ADA requirements.

Section 37.203  Lift Maintenance

    This provision is not substantively changed from the NPRM. It 
requires regular and frequent maintenance checks of lifts on OTRBs. The 
section does not require daily tests of lifts. However, it is intended 
to require frequent enough checks to ensure that any problems with lift 
operation are caught in a timely fashion. It is also intended to ensure 
that, when a lift is used to help a passenger board the bus,

[[Page 51688]]

it is not the first time all day the lift has been operated. The 
section provides that a vehicle with an inoperable lift may be kept in 
service for up to five days from the discovery of the problem, if there 
is no substitute vehicle to be had. In such a situation, however, the 
company operating the bus with the broken lift is not excused from 
paying compensation under Sec. 37.199.

Section 37.205  Additional Passengers Who Use Wheelchairs

    This section concerns a situation in which there are more 
wheelchair users seeking to travel on a bus than there are securement 
locations. Passengers would be assigned to the securement locations on 
a first-come, first-served basis. Additional passengers would be 
offered an opportunity to transfer to a vehicle seat. They would board 
via the lift but would then have to be assisted to a vehicle seat 
(e.g., through use of an aisle chair). The passenger's wheelchair would 
be stowed in the baggage compartment, in the same way provided for in 
Sec. 37.169.
    If the passenger did not accept this offer, the passenger would not 
have to be provided transportation on the bus. Assuming an accessible 
bus had been provided for the trip, the bus company would not owe the 
passenger compensation in this case.

Section 37.207  Discriminatory Practices

    This section lists several prohibited practices, reflecting 
concerns from disability community commenters about problems they had 
encountered in bus service under Sec. 37.169. Given the provisions of 
the final rule, it is likely that the situations involved with service 
in inaccessible buses would occur very rarely, particularly after 
October 2001/2002 when all advance notice service will be required to 
take place in accessible buses.

Section 37.209  Training and Other Requirements

     This section lists several sections of the Department's ADA rule 
that are particularly relevant to OTRB service. This is not an 
exclusive list. Bus operators must comply with all applicable portions 
of the rule. With respect to training, the section lists a number of 
tasks which bus company personnel must be trained to carry out 
properly.

Section 37.211  Effect of NHTSA and FHWA Safety Rules

    This section simply recites that OTRB operators are not required to 
violate applicable NHTSA and FHWA safety rules. This section does not 
mean that bus operators can decline to provide equipment and services 
to passengers with disabilities because the operators believe there may 
be safety risks or believe that NHTSA or FHWA should issue a rulemaking 
on a particular subject.

Section 37.213  Information Collection Requirements

    This section requires four different recordkeeping/reporting 
requirements. The first has to do with 48-hour advance notice and 
compensation. The second has to do with equivalent service and 
compensation. In both cases, the section requires bus operators to fill 
out a form when compensation has to be provided. The former section 
requires part of a form to be filled out and provided to the passenger 
when a request for advance-notice service is made.
    The third has to do with reporting information on ridership on 
accessible fixed-route buses. Fixed-route operators would separate out 
data for lift boardings on 48-hour service and other service. The 
fourth has to do with reporting information on the purchase and lease 
of accessible and inaccessible new and used buses, as well as the total 
numbers of buses in operators' fleets.
    The purposes of these information collection requirements are to 
provide data that the Department can use in its regulatory review (see 
Sec. 37.215) and to assist in our oversight of compliance by bus 
companies. Comments from both bus industry and disability community 
commenters suggested that recordkeeping and reporting of this kind 
would be useful for these purposes.
    These information collection requirements are subject to Office of 
Management and Budget (OMB) review under the Paperwork Reduction Act 
(PRA). The Department will subsequently submit to OMB a PRA approval 
request, including our estimate of the information collection burden 
associated with these requirements. Because the Department has not yet 
provided this package to OMB, we are keeping our docket open for 90 
days, to ensure that interested persons have the opportunity to comment 
on it to the Department as well as to OMB. The Department emphasizes 
that this comment period concerns only the information collection 
requirements of this section. Comments on other provisions of the final 
rule will not be considered.

Section 37.215  Review of Requirements

    This provision commits the Department to regulatory reviews of 
subpart H. The review would take place in 2005-2006 for rules affecting 
demand-responsive operators and 2006-2007 for rules affecting fixed-
route operators. The review would be based in part on the information 
provided to the Department in the 37.213 reports. The purpose of the 
review would be to determine whether a mid-course correction in the 
provisions of the rules is appropriate (e.g., whether it would be 
desirable to eliminate, modify, or make more stringent certain 
provisions of the rule).

Chart Summarizing Final Rule, as Compared to NPRM

    The following chart summarizes the provisions of the final rule, 
compared to the NPRM:

------------------------------------------------------------------------
                  NPRM                              Final rule
------------------------------------------------------------------------
Applies to private OTRB operators        Same.
 beginning October 2000 (large
 companies) or October 2001 (small
 companies).
A small company is one that is not a     Same.
 Class I carrier (currently, a Class I
 carrier is one with gross operating
 revenues of $5.3 million or more).
Large and small companies providing      Same for large companies; small
 fixed-route service, if purchasing or    companies have the alternative
 leasing a new OTRB, must acquire an      of providing equivalent
 accessible OTRB.                         service.
Large and small companies providing      Same deadlines for large
 fixed-route service must meet fleet      companies. Large companies may
 accessibility deadlines. Deadlines are   apply to the Secretary for a
 for 50% fleet accessibility by October   time extension if they have
 2006/2007 and 100% fleet accessibility   not obtained enough new buses
 by October 2012/2013. A small company    by those dates to replace 50
 does not have to meet these              or 100% of its fleet and meet
 requirements if it does not obtain       other conditions. No fleet
 enough new buses by those dates to       accessibility deadlines for
 replace 50 or 100% of its fleet.         small companies.

[[Page 51689]]

Large and small companies providing      Demand-responsive providers are
 demand-responsive service, if            required only to meet the
 purchasing or leasing new OTRBs, must    service requirement.
 obtain accessible buses unless they
 meet service requirements. Companies
 must meet 10% fleet accessibility
 requirement by October 2004/2005. A
 small operator does not have to meet
 this requirement if it does not obtain
 enough new buses by this date to
 replace 10% of its fleet.
Companies providing demand-responsive    Same requirement, but begins to
 service must provide an accessible       apply in October 2001/2002.
 OTRB on 48 hours' advance notice. This
 requirement begins to apply in October
 2002/2003.
No equivalent provision................  Small mixed-service operators
                                          (75% or more of whose fleets
                                          are devoted to demand-
                                          responsive service) can meet
                                          requirements for both fixed-
                                          route and demand-responsive
                                          service through 48-hour
                                          advance notice service.
No equivalent provision................  Fixed-route carriers who
                                          interline are required to send
                                          and receive information to one
                                          another to ensure that all
                                          accessible service needed for
                                          a trip is provided.
Until October 2002/2003, all companies   Advance notice interim service
 must provide at least the interim        with accessible buses begins
 service required by Sec.  37.169.        October 2001/2002.
 After those dates, fixed-route
 carriers with less than a 100%
 accessible fleet must provide at least
 48-hour advance notice service as
 interim service.
No equivalent provision................  A bus company that fails to
                                          provide 48-hour advance notice
                                          service (e.g., demand-
                                          responsive service, interim
                                          service) or equivalent
                                          service, where required by the
                                          rule, must compensate the
                                          passenger with a disability
                                          who requested the service.
                                          Compensation amounts range
                                          from $300 to $700, depending
                                          on the number of times the bus
                                          company has failed to provide
                                          required service.
Private entities not primarily in the    These entities must meet the
 business of transporting people must     same requirements as ``private
 obtain new accessible buses (fixed-      primarily'' fixed-route or
 route) or choose between obtaining new   demand-responsive operators.
 accessible buses and providing
 equivalent service (demand-responsive).
If an entity remanufactures an OTRB to   The requirement to
 extend its useful life 5 years or        remanufacture a bus to be
 more, the remanufacturing must make      accessible applies only in
 the bus accessible, unless not           situations where a new bus
 technically feasible.                    would have to be accessible.
At rest stops, operator of an            At rest stops, the bus operator
 accessible bus would operate lift to     would have to provide needed
 permit passenger with a disability to    assistance to allow passenger
 get on and off the bus to use            to use facilities.
 facilities. Operator of an               ``Unreasonable delay''
 inaccessible bus would provide           language deleted. Bus
 boarding assistance for the same         companies have obligation to
 purpose, but need not unreasonably       ensure ADA compliance by
 delay bus to provide this service.       facilities they own, lease,
                                          control or contract with. On
                                          express runs of 3 hours or
                                          more, if bus has inaccessible
                                          rest room, operator is
                                          required to make good faith
                                          effort to meet request of
                                          passenger with disability for
                                          unscheduled rest stop. The
                                          operator is not required to
                                          comply with the request, but
                                          must explain to the passenger
                                          the reason for any denial.
Bus companies must comply with Secs.     Same, but training requirements
 37.161, 37.165-37.167, and 37.173        are more specific.
 (concerning maintenance of other
 accessible features, lift and
 securement use, other service
 requirements, and training). Lift
 maintenance also required.
No equivalent provision................  If there are more wheelchair
                                          users on a given bus than
                                          securement locations, bus
                                          company must offer to provide
                                          boarding assistance and
                                          transfer to a vehicle seat. If
                                          passenger declines the offer,
                                          bus operator is not required
                                          to transport the passenger on
                                          that bus.
No equivalent provision................  Prohibited discriminatory
                                          actions listed (e.g., denials
                                          of service, use without
                                          passenger's consent of non-
                                          employees to provide boarding
                                          assistance).
No equivalent provision................  Statement that NHTSA and FHWA
                                          safety rules apply to OTRBs.
No equivalent provision................  Information collection required
                                          concerning provision of
                                          advance-notice and equivalent
                                          service and compensation, lift
                                          boardings, and bus
                                          acquisitions. The Department
                                          is seeking further comment on
                                          this provision, in connection
                                          with the Paperwork Reduction
                                          Act review process.
No equivalent provision................  Department will conduct review
                                          of rule's provisions in 2005-
                                          2007.
------------------------------------------------------------------------

Regulatory Analyses and Notices

    This is a significant regulation 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 Final Regulatory 
Assessment to accompany the rule, which we have placed in the docket 
for the rulemaking. The Office of Management and Budget (OMB) has 
reviewed this final rule and the regulatory assessment.
    Under the Regulatory Flexibility Act, this proposal is likely to 
have a significant economic impact on a substantial number of small 
entities. Indeed, all but 21 of the approximately 3500 bus companies 
covered by this rule are small entities. We have incorporated a 
Regulatory Flexibility Analysis into the regulatory assessment.
    The Small Business Administration Office of Advocacy commented on 
the NPRM, recommending a service-based approach for small entities 
coupled with an accountability mechanism. The final rule includes a 
number of provisions

[[Page 51690]]

that are largely consistent with SBA recommendations:
     Small fixed-route carriers have the alternative of 
providing equivalent service, in lieu of obtaining accessible buses.
     Small fixed-route carriers are not subject to fleet 
accessibility deadlines.
     Until their fleets are 100 percent accessible, small 
fixed-route carriers would provide interim accessible bus service on a 
48-hour advance notice basis.
     Small charter/tour carriers do not have a fleet 
accessibility percentage to meet and are not required to purchase 
accessible buses beyond what they need to meet the requirement for 48-
hour advance notice service.
     Small mixed-service operators (who devote 25 percent or 
less of their fleets to fixed-route service) can meet all requirements 
through providing 48-hour advance notice service
     Small carriers do not have to obtain accessible used buses 
or retrofit existing buses.
     There is an accountability mechanism, of a type suggested 
by an association representing small carriers, for failure to meet 
service standards.
     The regulatory review provisions can benefit small 
carriers.
    The Department has also placed an environmental assessment into the 
rulemaking docket. This rule does not have Federalism impacts under 
Executive Order 12612 sufficient to warrant a Federalism statement.

List of Subjects in 49 CFR Part 37

    Buildings and facilities, buses, civil rights, individuals with 
disabilities, mass transportation, railroads, transportation.

    Issued this 17th day of September, 1998, at Washington, D.C.
Rodney E. Slater,
Secretary of Transporation.

    For the reasons set forth in the preamble, 49 CFR Part 37 is 
amended as follows:

PART 37--TRANSPORTATION SERVICES FOR INDIVIDUALS WITH DISABILITIES 
(ADA)

    1. The authority for part 37 is 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 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. To determine whether an 
operator has sufficient average annual gross transportation operating 
revenues to be a Class I motor carrier, its revenues are combined with 
those of any other OTRB operator with which it is affiliated.
* * * * *
    4. A new Subpart H, consisting of Secs. 37.181 through 37.215, is 
added to part 37, to read as follows:

Subpart H--Over-the-road Buses (OTRBs)

Sec.
37.181  Applicability dates.
37.183  Purchase or lease of new OTRBs by operators of fixed-route 
systems.
37.185  Fleet accessibility requirement for OTRB fixed-route systems 
of large operators.
37.187  Interline service.
37.189  Service requirement for OTRB demand-responsive systems.
37.191  Special provision for small mixed-service operators.
37.193  Interim service requirements.
37.195  Purchase or lease of OTRBs by private entities not primarily 
in the business of transporting people.
37.197  Remanufactured OTRBs.
37.199  Compensation for failure to provide required vehicles or 
service.
37.201  Intermediate and rest stops.
37.203  Lift maintenance.
37.205  Additional passengers who use wheelchairs.
37.207  Discriminatory practices.
37.209  Training and other requirements.
37.211  Effect of NHTSA and FHWA safety rules.
37.213  Information collection requirements.
37.215  Review of requirements.

Appendix A to Subpart H of Part 37--Forms for Advance Notice Requests 
and Provision of Equivalent Service

Subpart H--Over-the-Road Buses (OTRBs)


Sec. 37.181  Applicability dates.

    This subpart applies to all private entities that operate OTRBs. 
The requirements of the subpart begin to apply to large operators 
beginning October 30, 2000 and to small operators beginning October 29, 
2001.


Sec. 37.183  Purchase or lease of new OTRBs by operators of fixed-route 
systems.

    The following requirements apply to private entities that are 
primarily in the business of transporting people, whose operations 
affect commerce, and that operate a fixed-route system, with respect to 
OTRBs delivered to them on or after the date on which this subpart 
applies to them:
    (a) Large operators. If a large entity operates a fixed-route 
system, and purchases or leases a new OTRB for or in contemplation of 
use in that system, it shall ensure that the vehicle is readily 
accessible to and usable by individuals with disabilities, including 
individuals who use wheelchairs.
    (b) Small operators. If a small entity operates a fixed-route 
system, and purchases or leases a new OTRB for or in contemplation of 
use in that system, it must do one of the following two things:
    (1) Ensure that the vehicle is readily accessible to and usable by 
individuals with disabilities, including individuals who use 
wheelchairs; or
    (2) Ensure that equivalent service, as defined in Sec. 37.105, is 
provided to individuals with disabilities, including individuals who 
use wheelchairs. To meet this equivalent service standard, the service 
provided by the operator must permit a wheelchair user to travel in his 
or her own mobility aid.


Sec. 37.185  Fleet accessibility requirement for OTRB fixed-route 
systems of large operators.

    Each large operator subject to the requirements of Sec. 37.183 
shall ensure that--
    (a) By October 30, 2006 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 October 29, 2012, 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) Request for time extension. An operator may apply to the 
Secretary for a time extension of the fleet accessibility deadlines of 
this section. If he or she grants the request, the Secretary sets a 
specific date by which the operator must meet the fleet accessibility 
requirement. In determining whether to grant such a request, the 
Secretary considers the following factors:
    (1) Whether the operator has purchased or leased, since October 30, 
2000, enough new OTRBs to replace 50 percent of the OTRBs with which it 
provides fixed-route service by October 30, 2006 or 100 percent of such 
OTRBs by October 29, 2012;
    (2) Whether the operator has purchased or leased, between October 
28, 1998 and October 30, 2000, a number of new inaccessible OTRBs 
significantly exceeding the number of buses it would normally obtain in 
such a period;
    (3) The compliance with all requirements of this part by the 
operator

[[Page 51691]]

over the period between October 28, 1998 and the request for time 
extension.


Sec. 37.187  Interline service.

    (a) When the general public can purchase a ticket or make a 
reservation with one operator for a fixed-route trip of two or more 
stages in which another operator provides service, the first operator 
must arrange for an accessible bus, or equivalent service, as 
applicable, to be provided for each stage of the trip to a passenger 
with a disability. The following examples illustrate the provisions of 
this paragraph (a):

    Example 1. By going to Operator X's ticket office or calling X 
for a reservation, a passenger can buy or reserve a ticket from 
Point A through to Point C, transferring at intermediate Point B to 
a bus operated by Operator Y. Operator X is responsible for 
communicating immediately with Operator Y to ensure that Y knows 
that a passenger needing accessible transportation or equivalent 
service, as applicable, is traveling from Point B to Point C. By 
immediate communication, we mean that the ticket or reservation 
agent for Operator X, by phone, fax, computer, or other 
instantaneous means, contacts Operator Y the minute the reservation 
or ticketing transaction with the passenger, as applicable, has been 
completed. It is the responsibility of each carrier to know how to 
contact carriers with which it interlines (e.g., Operator X must 
know Operator Y's phone number).
    Example 2. Operator X fails to provide the required information 
in a timely manner to Operator Y. Operator X is responsible for 
compensating the passenger for the consequent unavailability of an 
accessible bus or equivalent service, as applicable, on the B-C leg 
of the interline trip.

    (b) Each operator retains the responsibility for providing the 
transportation required by this subpart to the passenger for its 
portion of an interline trip. The following examples illustrate the 
provisions of this paragraph (b):

    Example 1. In Example 1 to paragraph (a) of this section, 
Operator X provides the required information to Operator Y in a 
timely fashion. However, Operator Y fails to provide an accessible 
bus or equivalent service to the passenger at Point B as the rules 
require. Operator Y is responsible for compensating the passenger as 
provided in Sec. 37. 199.
    Example 2. Operator X provides the required information to 
Operator Y in a timely fashion. However, the rules require Operator 
Y to provide an accessible bus on 48 hours' advance notice (i.e., as 
a matter of interim service under Sec. 37.193(a) or service by a 
small mixed-service operator under Sec. 37.191), and the passenger 
has purchased the ticket or made the reservation for the interline 
trip only 8 hours before Operator Y's bus leaves from Point B to go 
to Point C. In this situation, Operator Y is not responsible for 
providing an accessible bus to the passenger at Point B, any more 
than that it would be had the passenger directly contacted Operator 
Y to travel from Point B to Point C.

    (c) All fixed-route operators involved in interline service shall 
ensure that they have the capacity to receive communications at all 
times concerning interline service for passengers with disabilities. 
The following examples illustrate the provisions of this paragraph (c):

    Example 1. Operator Y's office is staffed only during normal 
weekday business hours. Operator Y must have a means of receiving 
communications from carriers with which it interlines (e.g., 
telephone answering machine, fax, computer) when no one is in the 
office.
    Example 2. Operator Y has the responsibility to monitor its 
communications devices at reasonable intervals to ensure that it can 
act promptly on the basis of messages received. If Operator Y 
receives a message from Operator X on its answering machine on 
Friday night, notifying Y of the need for an accessible bus on 
Monday morning, it has the responsibility of making sure that the 
accessible bus is there on Monday morning. Operator Y is not excused 
from its obligation because no one checked the answering machine 
over the weekend.


Sec. 37.189  Service requirement for OTRB demand-responsive systems.

    (a) This section applies to private entities primarily in the 
business of transporting people, whose operations affect commerce, and 
that provide demand-responsive OTRB service. Except as needed to meet 
the other requirements of this section, these entities are not required 
to purchase or lease accessible buses in connection with providing 
demand-responsive service.
    (b) Demand-responsive operators shall ensure that, beginning one 
year from the date on which the requirements of this subpart begin to 
apply to the entity, any individual with a disability who requests 
service in an accessible OTRB receives such service. This requirement 
applies to both large and small operators.
    (c) The operator may require up to 48 hours' advance notice to 
provide this service.
    (d) If the individual with a disability does not provide the 
advance notice the operator requires under paragraph (a) of this 
section, the operator shall nevertheless provide the service if it can 
do so by making a reasonable effort.
    (e) To meet this requirement, an operator is not required to 
fundamentally alter its normal reservation policies or to displace 
another passenger who has reserved a seat on the bus. The following 
examples illustrate the provisions of this paragraph (e):

    Example 1. A tour bus operator requires all passengers to 
reserve space on the bus three months before the trip date. This 
requirement applies to passengers with disabilities on the same 
basis as other passengers. Consequently, an individual passenger who 
is a wheelchair user would have to request an accessible bus at the 
time he or she made his reservation, at least three months before 
the trip date. If the individual passenger with a disability makes a 
request for space on the trip and an accessible OTRB 48 hours before 
the trip date, the operator could refuse the request because all 
passengers were required to make reservations three months before 
the trip date.
    Example 2. A group makes a reservation to charter a bus for a 
trip four weeks in advance. A week before the trip date, the group 
discovers that someone who signed up for the trip is a wheelchair 
user who needs an accessible bus, or someone who later buys a seat 
in the block of seats the group has reserved needs an accessible 
bus. A group representative or the passenger with a disability 
informs the bus company of this need more than 48 hours before the 
trip date. The bus company must provide an accessible bus.
    Example 3. While the operator's normal deadline for reserving 
space on a charter or tour trip has passed, a number of seats for a 
trip are unfilled. The operator permits members of the public to 
make late reservations for the unfilled seats. If a passenger with a 
disability calls 48 hours before the trip is scheduled to leave and 
requests a seat and the provision of an accessible OTRB, the 
operator must meet this request, as long as it does not displace 
another passenger with a reservation.
    Example 4. A tour bus trip is nearly sold out three weeks in 
advance of the trip date. A passenger with a disability calls 48 
hours before the trip is scheduled to leave and requests a seat and 
the provision of an accessible OTRB. The operator need not meet this 
request if it will have the effect of displacing a passenger with an 
existing reservation. If other passengers would not be displaced, 
the operator must meet this request.


Sec. 37.191  Special provision for small mixed-service operators.

    (a) For purposes of this section, a small mixed-service operator is 
a small operator that provides both fixed-route and demand-responsive 
service and does not use more than 25 percent of its buses for fixed-
route service.
    (b) An operator meeting the criteria of paragraph (a) of this 
section may conduct all its trips, including fixed-route trips, on an 
advance-reservation basis as provided for demand-responsive trips in 
Sec. 37.189. Such an operator is not required to comply with the 
accessible bus acquisition/equivalent service obligations of 
Sec. 37.183(b).


Sec. 37.193  Interim service requirements.

    (a) Until 100 percent of the fleet of a large or small operator 
uses to provide

[[Page 51692]]

fixed-route service is composed of accessible OTRBs, the operator shall 
meet the following interim service requirements:
    (1) Beginning one year from the date on which the requirements of 
this subpart begin to apply to the operator, it shall ensure that any 
individual with a disability that requests service in an accessible 
OTRB receives such service.
    (i) The operator may require up to 48 hours' advance notice to 
provide this service.
    (ii) If the individual with a disability does not provide the 
advance notice the operator requires, the operator shall nevertheless 
provide the service if it can do so by making a reasonable effort.
    (iii) If the trip on which the person with a disability wishes to 
travel is already provided by an accessible bus, the operator has met 
this requirement.
    (2) Before a date one year from the date on which this subpart 
applies to the operator, an operator which is unable to provide the 
service specified in paragraph (a) of this section shall comply with 
the requirements of Sec. 37.169.
    (3) Interim service under this paragraph (a) is not required to be 
provided by a small operator who is providing equivalent service to its 
fixed-route service as provided in Sec. 37.183(b)(2).
    (b) Some small fixed-route operators may never have a fleet 100 
percent of which consists of accessible buses (e.g., a small fixed-
route operator who exclusively or primarily purchases or leases used 
buses). Such an operator must continue to comply with the requirements 
of this section with respect to any service that is not provided 
entirely with accessible buses.
    (c) Before a date one year from the date on which this subpart 
applies to an operator providing demand-responsive service, an operator 
which is unable to provide the service described in Sec. 37.189 shall 
comply with the requirements of Sec. 37.169.


Sec. 37.195  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 new 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 or in contemplation of use 
on the system, it shall meet the requirements of Sec. 37.183 (a) or 
(b), as applicable.
    (b) Demand-responsive systems. The requirements of Sec. 37.189 
apply to demand-responsive systems operated by private entities not 
primarily in the business of transporting people. If such an entity 
operates a demand-responsive system, and purchases or leases an OTRB 
for or in contemplation of use on the system, it is not required to 
purchase or lease an accessible bus except as needed to meet the 
requirements of Sec. 37.189.


Sec. 37.197  Remanufactured OTRBs.

    (a) This section applies to any private entity operating OTRBs that 
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) In any situation in which this subpart requires an entity 
purchasing or leasing a new OTRB to purchase or lease an accessible 
OTRB, OTRBs 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. 37.199  Compensation for failure to provide required vehicles or 
service.

    (a) Operators shall pay compensation to passengers with 
disabilities as provided in this section in the following situations:
    (1) If a demand-responsive operator under Sec. 37.189 or a small 
mixed-service operator under Sec. 37.191 fails to provide in a timely 
manner an accessible OTRB to a passenger with a disability who has made 
a timely request for such a bus;
    (2) If a fixed-route operator providing interim service under 
Sec. 37.193(a)(1) fails to provide in a timely manner an accessible 
OTRB to a passenger with a disability who has made a timely request for 
such a bus;
    (3) If a small fixed-route operator who chooses to provide 
equivalent service under Sec. 37.183(b)(2) fails to provide equivalent 
service to a passenger;
    (4) If required service is not provided to a passenger with a 
disability because accessibility equipment does not function or 
operator personnel do not perform essential tasks;
    (5) If, for a trip involving an interline connection (see 
Sec. 37.187), the operator with whom the passenger purchases the ticket 
or makes a reservation for the trip fails to communicate immediately 
with other operators providing a portion of the trip to inform them of 
the need for an accessible bus or equivalent service, as applicable, 
with the result that other operators do not provide the service 
required by this subpart; or
    (6) If an operator required to provide interim service under 
Sec. 37.169, after the date on which this subpart begins to apply to 
the operator, fails to provide this service.
    (b) When one of the events in paragraph (a) of this section calling 
for compensation occurs, the operator shall pay compensation regardless 
of the reason for the failure to provide the required service. The only 
exception to this requirement is a situation in which, for reasons 
beyond the control of the operator, no transportation is provided to 
any passenger.
    (c) The amount of the compensation shall be the following:
    (1) On the first occasion on which the operator fails to provide 
the required service as provided in paragraph (a) of this section to 
any passenger, $300;
    (2) On the second such occasion, $400;
    (3) On the third such occasion, $500;
    (4) On the fourth such occasion, $600;
    (5) On the fifth and subsequent such occasions, $700.
    (d) The operator shall provide this compensation to the passenger 
within seven working days of the date on which the operator failed to 
provide the accessible OTRB or provide equivalent service, as 
applicable.
    (e) Payment of compensation under this section is not a defense to 
legal action brought against the operator to enforce the Americans with 
Disabilities Act or this part.


Sec. 37.201  Intemediate and rest stops.

    (a) Whenever an 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.

[[Page 51693]]

The operator shall ensure that assistance is provided to passengers 
with disabilities as needed to enable the passenger to get on and off 
the bus at the stop (e.g., operate the lift and provide assistance with 
securement; provide other boarding assistance if needed, as in the case 
of a wheelchair user who has transferred to a vehicle seat because 
other wheelchair users occupied all securement locations).
    (b) If an OTRB operator owns, leases, or controls the facility at 
which a rest or intermediate stop is made, or if an OTRB operator 
contracts with the person who owns, leases, or controls such a facility 
to provide rest stop services, the OTRB operator shall ensure the 
facility complies fully with applicable requirements of the Americans 
with Disabilities Act.
    (c) If an OTRB equipped with an inaccessible restroom is making an 
express run of three hours or more without a rest stop, and a passenger 
with a disability who is unable to use the inaccessible restroom 
requests an unscheduled rest stop, the operator shall make a good faith 
effort to accommodate the request. The operator is not required to make 
the stop. However, if the operator does not make the stop, the operator 
shall explain to the passenger making the request the reason for its 
decision not to do so.


Sec. 37.203  Lift maintenance.

    (a) The entity shall establish a system of regular and frequent 
maintenance checks of lifts sufficient to determine if they are 
operative.
    (b) 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.
    (c) Except as provided in paragraph (d) 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.
    (d) 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.


Sec. 37.205  Additional passengers who use wheelchairs.

    If a number of wheelchair users exceeding the number of securement 
locations on the bus seek to travel on a trip, the operator shall 
assign the securement locations on a first come-first served basis. The 
operator shall offer boarding assistance and the opportunity to sit in 
a vehicle seat to passengers who are not assigned a securement 
location. If the passengers who are not assigned securement locations 
are unable or unwilling to accept this offer, the operator is not 
required to provide transportation to them on the bus.


Sec. 37.207  Discriminatory practices.

    It shall be considered discrimination for any operator to--
    (a) Deny transportation to passengers with disabilities, except as 
provided in Sec. 37.5(h);
    (b) Use or request the use of persons other than the operator's 
employees (e.g., family members or traveling companions of a passenger 
with a disability, medical or public safety personnel) for routine 
boarding or other assistance to passengers with disabilities, unless 
the passenger requests or consents to assistance from such persons;
    (c) Require or request a passenger with a disability to reschedule 
his or her trip, or travel at a time other than the time the passenger 
has requested, in order to receive transportation as required by this 
subpart;
    (d) Fail to provide reservation services to passengers with 
disabilities equivalent to those provided other passengers; or
    (e) Fail or refuse to comply with any applicable provision of this 
part.


Sec. 37.209  Training and other requirements.

    OTRB operators shall comply with the requirements of Secs. 37.161, 
37.165-37.167, and 37.173. For purposes of Sec. 37.173, ``training to 
proficiency'' is deemed to include, as appropriate to the duties of 
particular employees, training in proper operation and maintenance of 
accessibility features and equipment, boarding assistance, securement 
of mobility aids, sensitive and appropriate interaction with passengers 
with disabilities, handling and storage of mobility devices, and 
familiarity with the requirements of this subpart. OTRB operators shall 
provide refresher training to personnel as needed to maintain 
proficiency.


Sec. 37.211  Effect of NHTSA and FHWA safety rules.

    OTRB operators are not required to take any action under this 
subpart that would violate an applicable National Highway Traffic 
Safety Administration or Federal Highway Administration safety rule.


Sec. 37.213  Information collection requirements.

    (a) This paragraph (a) applies to demand-responsive operators under 
Sec. 37.189 and fixed-route operators under Sec. 37.193(a)(1) that are 
required to, and small mixed-service operators under Sec. 37.191 that 
choose to, provide accessible OTRB service on 48 hours' advance notice.
    (1) When the operator receives a request for accessible bus 
service, the operator shall complete lines 1-8 of the Form A in 
Appendix A to this subpart. The operator shall immediately provide a 
copy of the form to the passenger.
    (2) On the scheduled date of the trip, the operator shall complete 
lines 9-11 of the form. In any case in which the requested accessible 
bus was not provided, the operator shall immediately provide a copy of 
the form to the passenger.
    (3) The operator shall retain its copy of the completed form for 
five years. The operator shall make these forms available to Department 
of Transportation or Department of Justice officials at their request.
    (4) Beginning October 29, 2001 for large operators, and October 28, 
2002 for small operators, and on that date in each year thereafter, 
each operator shall submit a summary of its forms to the Department of 
Transportation. The summary shall state the number of requests for 
accessible bus service, the number of times these requests were met, 
and the number of times compensation was paid. It shall also include 
the name, address, telephone number, and contact person name for the 
operator.
    (b) This paragraph (b) applies to small fixed-route operators who 
choose to provide equivalent service to passengers with disabilities 
under Sec. 37.183(b)(2).
    (1) The operator shall complete Form B in Appendix A to this 
subpart on every occasion on which a passenger with a disability needs 
equivalent service in order to be provided transportation.
    (2) The operator shall provide one copy of the form to the 
passenger and retain another copy of the completed form for five years. 
The operator shall make these forms available to Department of 
Transportation or Department of Justice officials at their request.
    (3) Beginning October 28, 2002, and on that date in each year 
thereafter, each operator shall submit a summary of its forms to the 
Department of Transportation. The summary shall state the number of 
situations in which equivalent service was needed, the number of times 
such service was

[[Page 51694]]

provided, and the number of times compensation was paid. It shall also 
include the name, address, telephone number, and contact person name 
for the operator.
    (c) Beginning October 30, 2000 for large operators, and October 29, 
2001 for small operators, and on that date in each year thereafter, 
each fixed-route operator shall submit to the Department a report on 
how many passengers with disabilities used the lift to board accessible 
buses. For fixed-route operators, the report shall reflect separately 
the data pertaining to 48-hour advance reservation service and other 
service.
    (d) Each operator shall submit to the Department, October 28, 1999 
and each year thereafter on that date, a summary report listing the 
number of new buses and used buses it has purchased or leased during 
the preceding year, and how many of the buses in each category are 
accessible. It shall also include the total number of buses in the 
operator's fleet and the name, address, telephone number, and contact 
person name for the operator.
    (e) The information required to be submitted to the Department 
shall be sent to the following address: Bureau of Transportation 
Statistics, 400 7th Street, SW., Washington, DC 20590.


Sec. 37.215  Review of requirements.

    (a) Beginning October 28, 2005, the Department will review the 
requirements of Sec. 37.189 and their implementation. The Department 
will complete this review by October 30, 2006.
    (1) As part of this review, the Department will consider factors 
including, but not necessarily limited to, the following:
    (i) The percentage of accessible buses in the demand-responsive 
fleets of large and small demand-responsive operators.
    (ii) The success of small and large demand-responsive operators' 
service at meeting the requests of passengers with disabilities for 
accessible buses in a timely manner.
    (iii) The ridership of small and large operators' demand-responsive 
service by passengers with disabilities.
    (iv) The volume of complaints by passengers with disabilities.
    (v) Cost and service impacts of implementation of the requirements 
of Sec. 37.189.
    (2) The Department will make one of the following decisions on the 
basis of the review:
    (i) Retain Sec. 37.189 without change; or
    (ii) Modify the requirements of Sec. 37.189 for large and/or small 
demand-responsive operators.
    (b) Beginning October 30, 2006, the Department will review the 
requirements of Secs. 37.183, 37.185, 37.187, 37.191 and 37.193(a) and 
their implementation. The Department will complete this review by 
October 29, 2007.
    (1) As part of this review, the Department will consider factors 
including, but not necessarily limited to, the following:
    (i) The percentage of accessible buses in the fixed-route fleets of 
large and small fixed-route operators.
    (ii) The success of small and large fixed-route operators' interim 
or equivalent service at meeting the requests of passengers with 
disabilities for accessible buses in a timely manner.
    (iii) The ridership of small and large operators' fixed-route 
service by passengers with disabilities.
    (iv) The volume of complaints by passengers with disabilities.
    (v) Cost and service impacts of implementation of the requirements 
of these sections.
    (2) The Department will make one of the following decisions on the 
basis of the review:
    (i) Retain Secs. 37.183, 37.185, 37.187, 37.191, 37.193(a) without 
change; or
    (ii) Modify the requirements of Secs. 37.183, 37.185, 37.187, 
37.191, 37.193(a) for large and/or small fixed-route operators.

Appendix A to Subpart H of Part 37--Forms for Advance Notice 
Requests and Provision of Equivalent Service

Form A--For Use by Providers of Advance Notice Service

1. Operator's name-----------------------------------------------------
2. Address-------------------------------------------------------------
----------------------------------------------------------------------
3. Phone number:-------------------------------------------------------
4. Passenger's name:---------------------------------------------------
5. Address:------------------------------------------------------------
----------------------------------------------------------------------
6. Phone number:-------------------------------------------------------
7. Scheduled date and time of trip:------------------------------------
8. Date and time of request:-------------------------------------------
9. Was accessible bus provided for trip? Yes____ no____
10. Was there a basis recognized by U.S. Department of 
transportation regulations for not providing an accessible bus for 
the trip? Yes____ no____
If yes, explain--------------------------------------------------------
----------------------------------------------------------------------
11. If the answers to items 9 and 10 were both no, attach 
documentation that compensation required by department of 
transportation regulations was paid.

Form B--For Use by Providers of Equivalent Service

1. Operator's name-----------------------------------------------------
2. Address-------------------------------------------------------------
----------------------------------------------------------------------
3. Phone number:-------------------------------------------------------
4. Passenger's name:---------------------------------------------------
5. Address:------------------------------------------------------------

----------------------------------------------------------------------
6. Phone number:-------------------------------------------------------
7. Date and time of trip:----------------------------------------------
8. Location of need for equivalent service:
----------------------------------------------------------------------
9. Was equivalent service provided for trip? Yes____ no____
10. If the answer to items 9 and 10 is no, attach documentation that 
compensation required by Department of Transportation regulations 
was paid.

[FR Doc. 98-25421 Filed 9-24-98; 2:15 pm]
BILLING CODE 4910-62-P