Transportation for Individuals With Disabilities

DEPARTMENT OF TRANSPORTATION

Office of the Secretary

49 CFR Parts 37 and 38

[Docket No. 49658]

RIN 2105-AC13

Transportation for Individuals With Disabilities

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

ACTION: Final rule.

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SUMMARY: The Department is amending several provisions of its rules

implementing the Americans with Disabilities Act (ADA). Some of the

changes are being made in response to petitions received by the

Department. The first change will ensure that the rule treats

independent private schools similarly to other schools. The second

change will apply the same gap standard to high speed automated

guideway transit (AGT) systems as is applied to other rapid and light

rail systems. The third petition granted in this rule will give local

jurisdictions more discretion with respect to advance reservation

systems for paratransit services. However, the Department is

withdrawing a proposal that would have permitted transit authorities to

determine that certain bus stops may be designated as non-accessible

stops.

This rule will also make six amendments that derive from the

Department's own proposals. The first will decrease the paperwork

burden of producing annual paratransit plan updates once the

paratransit system reaches full compliance with ADA regulations. The

second will clarify a visitor's eligibility for paratransit services.

The third will clarify the vehicle acquisition requirements for private

entities not primarily engaged in the business of transporting people.

The fourth amendment will remove ``inability to comply'' as a condition

of gaining a determination of equivalent facilitation. The final two

amendments will eliminate confusion in a cross reference within the

regulation and correct a typographical error. The Department has

concluded that no change is warranted in the regulatory definition of a

personal care attendant.

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

FOR FURTHER INFORMATION CONTACT: Robert C. Ashby, Deputy Assistant

General Counsel for Regulation and Enforcement, Department of

Transportation, 400 7th Street, SW., Room 10424, Washington, DC 20590.

(202) 366-9306 (voice); (202) 755-7687 (TDD); or Richard Wong, Office

of Chief Counsel, Federal Transit Administration, same street address,

Room 9316. (202) 366-4011.

SUPPLEMENTARY INFORMATION:

I. Introduction

The Department published its notice of proposed rulemaking (NPRM)

on the issues covered by this rule on July 21, 1994. The NPRM included

proposed amendments that were petitioned for by the public on which the

Department took no initial position and proposals that the Department

generated internally. The Department received over 275 comments on the

NPRM, most of which came from individuals with disabilities,

organizations representing them and transit authorities. Additional

[[Page 25410]]

comments were received from state disability advocates, engineering

groups, paratransit providers and equipment manufacturers, as well as

others.

II. Petitions for Rulemaking

1. Bus Stops

This issue, raised in the NPRM on the basis of a petition from

Seattle Metro, was the most controversial in the rulemaking. Disability

community commenters were virtually unanimous in strongly opposing

Seattle's suggestion that transit authorities be authorized to declare

a bus stop ``off limits'' to wheelchair users, or in some cases, to all

lift users, on the basis that conditions at the stop made its use too

dangerous for such passengers. These commenters included disability

advocacy organizations, individuals, the U.S. Department of Justice,

and state and local government agencies. A few transit agencies also

shared their point of view.

The first point these commenters made was that individuals with

disabilities--not transit agencies--should decide when a given stop is

appropriate for them to use. Individuals with disabilities know their

own abilities better than anyone else, and can make reasonable choices

about what is or is not safe for them. Allowing other parties, such as

transit agencies, to make these choices smacks of paternalism and is

the sort of well-intended constraint on the activities of persons with

disabilities that the ADA is specifically intended to prevent.

Providing discretion to transit authorities to deny to passengers with

disabilities the use of facilities that other passengers are allowed to

use is a clear violation of the ADA's nondiscrimination mandate, many

commenters said.

What made the proposal additionally objectionable, many of these

commenters said, was that there was no empirical evidence that there

was a significant safety problem at bus stops. There might be

speculation that a safety problem existed, and worry about potential

liability, but there were few, if any, facts presented that the problem

was real. When there is a nondiscrimination mandate like that of the

ADA, any classification that denies services to the protected class

must be based on demonstrated facts, they said, not on fear. Many of

these commenters pointed to the ADA's ``direct threat'' concept as a

model for determining when it is acceptable to deny services or

facilities to individuals with disabilities based on a safety risk.

This concept, they noted, focuses on the individual situation of each

disabled person, not on the presumed abilities of a class of persons

with disabilities.

Finally, a number of these commenters noted that, if individuals

are denied use of stops, they will become eligible for paratransit,

which will increase costs to transit authorities. There could also be

situations in which people would be denied service altogether because

of limited capacity on paratransit systems, one commenter noted. (Two

transit authority commenters said, on the other hand, that transit

authorities' desire to avoid adding to paratransit costs would be a

deterrent to abuse of discretion to limit passengers' use of unsafe

stops.)

Many disability community commenters, and several transit

authorities as well, opposed the petition's suggestion that the

standard for determining the suitability of a stop for disabled

passengers be the new construction standard for bus stops in the

Americans with Disabilities Act Accessibility Guidelines (AADAG). This

standard, they said, was of questionable relevance to streetside bus

stops in mass transit systems, and was inappropriate for use in a

situation involving existing facilities in any event. The obligation

that public entities have for existing facilities, they noted, is to

make them program accessible, not necessarily to bring them up to new

construction standards. The new construction standard was never

intended to be a safety standard, or a criterion to determine when an

individual with disabilities would be allowed to use a facility. The

petitioner was the only commenter to support the proposal to use the

new construction standard.

A large majority of the transit providers that commented supported

the idea that they should have discretion to declare stops ``off

limits'' to lift users on the basis of safety. Because some stops had

hazards that affect passengers with disabilities in ways that other

passengers are not affected (e.g., stops that have a narrow area for

maneuvering that present a problem to wheelchair users but not

ambulatory persons, stops with a drop-off that can result in a

wheelchair overturning), it is rational to prevent accidents and

injuries by denying use of these stops to persons for whom the hazards

are serious. Concern about liability was another reason advanced by

many transit commenters. Seattle said it had experienced seven

accidents because of bus stop problems since 1987, including one

serious injury that resulted in a settlement of over $400,000.

While the transit community generally supported Seattle's petition,

there were a number of interesting nuances in transit provider

comments. Some emphasized the necessity of working with the disability

community on bus stop access issues, including public hearings or other

opportunities for public participation. Improving or moving existing

bus stops was a step mentioned by others. Differences among buses and

passengers need to be taken into consideration, others said. Prodding

the Department of Justice to issue regulations requiring local

governments to work on making bus stops under their control program

accessible was another suggestion. Better training for drivers on how

to deploy lifts safely in a variety of situations was also recommended.

Some commenters also mentioned (but apparently did not favor) the

possibility of closing stops to all passengers if they were not safely

usable by passengers with disabilities.

This is a case in which both sides of the debate have genuine

concerns. The petitioner and comments supporting its position worry, in

good faith, about potential safety problems facing wheelchair users at

some bus stops and about ensuing liability problems that may result for

transit providers. In the absence of legal constraints on the use of

classifications based on disability, it could arguably be rational for

transit providers to take the kind of action that the petition

proposes.

However, the ADA imposes strong legal constraints on the use of

classifications based on disability. Under the ADA, a proposed action

which treats a disability-based class of persons differently from the

rest of the public cannot be accepted merely because it may assuage a

party's good faith concerns about safety. This is a position that the

Department has taken consistently as it has developed and implemented

its ADA regulations.

For example, before and during the development of Part 37, there

was considerable discussion of transit providers' good-faith safety

concerns about transporting three-wheeled ``scooters.'' Many commenters

asserted that these devices were unstable and difficult to secure, and

asked that transit providers have the discretion to exclude them on the

basis of these safety-related concerns. The Department required that

providers carry such mobility devices, noting the absence of

``information in the record that would support a finding that carrying

non-traditional wheelchairs would constitute a `direct threat' to the

safety of others. * * *'' (56 FR 45617; September 6, 1991).

Subsequently, transit community commenters raised the issue of the

use

[[Page 25411]]

of lifts by standees, which the original version of Part 37 required.

The commenters expressed the concern that standees could fall off the

lifts or hit their heads, resulting in injury to passengers and

liability for providers. With one exception (concerning a particular

lift model that was no longer being manufactured), there was little

information in the record demonstrating that a real safety problem, as

distinct from speculation or fears concerning potential safety

problems, existed. The Department rejected the proposal, saying that--

[t]he ADA is a nondiscrimination statute, intended to ensure * *

* that people with disabilities have access to transportation

services. To permit a transportation provider to exclude a category

of persons with disabilities from * * * access to a vehicle on the

basis of a perceived safety hazard, absent information in the record

that the hazard is real, would be inconsistent with the statute. * *

* While we understand the concerns of transit agency commenters

about the potential safety risks that may be involved, the

Department does not have a basis in the rulemaking record for

authorizing a restriction on lift use by standees. (58 FR 63096;

November 30, 1993).

The Department's analysis of the Seattle petition is very similar

to its response to these two previous issues. The petition presents a

genuine, good-faith concern that a certain condition (here, terrain or

other problems at particular bus stops) may create a safety hazard for

a class of persons with disabilities. There is, in the comments

favoring the petition, agreement that difficult conditions at some

stops might, indeed, create some safety risks for wheelchair users or

other persons with disabilities. But there is little in the record to

suggest that there is substantial, pervasive, or strong evidence that a

real, as distinct from speculative, safety problem exists.

To its credit, the petitioner attempted to show the Department that

problem stops existed for which the petitioner's proposed remedy was

needed. The petitioner provided a videotaped demonstration of

wheelchair users attempting to get on and off buses using lifts at

several problem stops. After reviewing the tape, the Department

concluded that it is reasonable to believe that at such stops,

wheelchair users may well have greater difficulty, and take longer, in

using bus lifts than at other stops. In some of the situations, there

could be a higher risk to wheelchair users than at other, more

``normal,'' stops. The Department does not find this evidence

sufficient, however, to justify carving out an exception to the

nondiscrimination mandate of the ADA.

In thinking about situations in which safety reasons are advanced

for using disability-based classifications, the Department finds it

useful to consider the ``direct threat'' provisions that exist in other

provisions of the ADA. ``Direct threat'' permits exceptions--specific

to an individual--to be made to ADA nondiscrimination requirements on

the basis of safety. The Department of Justice (DOJ) rule implementing

Title III of the ADA in the context of public accommodations defines

the concept as follows:

Direct threat means a significant risk to the health or safety

of others that cannot be eliminated by a modification of policies,

practices, or procedures, or by the provision of auxiliary aids or

services. In determining whether an individual poses a direct threat

to the health or safety of others, a public accommodation must make

an individualized assessment, based on a reasonable judgment that

relies on current medical knowledge or on the best available

objective evidence, to ascertain: the nature, duration, and severity

of the risk; the probability that the potential injury will actually

occur; and whether reasonable modifications of policies, practices,

or procedures will mitigate the risk. (28 CFR 36.208 (b)-(c)).

Very similar regulatory language appears in the Equal Employment

Opportunity Commission (EEOC) rules implementing Title I of the ADA in

the context of employment (29 CFR 1630.2(r); see also discussion 56 FR

35745; July 26, 1991). The Department of Justice regulation

implementing Title II of the ADA in the context of state and local

government programs does not include ``direct threat'' language in its

regulatory text, but the preamble applies the concept to the essential

eligibility requirements for participating in state and local programs

(56 FR 35701; July 26, 1991).

While the DOJ and EEOC language concerning ``direct threat'' does

not necessarily apply in its entirety to transportation issues, the

Department believes that it is appropriate, and in keeping with the

language and intent of the statute, to determine that disability-based

classifications in transportation having a safety rationale are

supportable only on the basis of analysis that incorporates the

essentials of the ``direct threat'' concept in a way consistent with

the nature of transportation programs. The petition at issue in this

rulemaking does not, in the Department's view, closely approach what is

necessary to be adopted under such an analysis.

As a general matter, the points raised by commenters opposed to the

proposal, as described above, have been more persuasive to the

Department than those points made by its proponents. These points add

to the discussion above as reasons for the Department's decision.

The Department believes that transit providers which, like Seattle,

sincerely desire both to provide nondiscriminatory service to

individuals with disabilities and to maximize bus stop safety have some

means available to achieve these objectives. For example, a transit

provider could provide information to lift users about potential

hazards at certain stops and offer informational on alternative stops

or routings to such passengers, where alternatives were available. The

provider could also offer paratransit to those passengers who chose to

avoid using the stops as a result.

The transit provider could make operational modifications to

mitigate potential hazards. For example, if there is limited space or a

potential hazard at a stop, the bus could let a wheelchair user board

at a nearby area that was easier to use or stop at a greater distance

from the curb. We are aware that transit providers are often reluctant

to depart from normal practices in this regard (although such

deviations appear commonplace during inclement weather, such as when

bottomless puddles, ``Blizzard of '96''-size snowbanks, or carnivorous

potholes make access to normal stops difficult for all passengers).

Nevertheless, these are among the kinds of ``reasonable modifications

of policies, practices, or procedures [to] mitigate the risk'' that the

ADA calls for.

Transit providers can also urge local governments to improve

accessibility to bus stops, mitigate hazards at stops, or, if need be,

move stops to better locations. The Department is aware that transit

providers often do not control the placement of stops or the land on

which they are located, though we believe that transit providers should

continue the effort to work with their local governments on these

matters.

For these reasons, the Department is withdrawing the proposal,

based on the Seattle petition, to permit transit providers to limit the

use of certain bus stops by lift users. The existing rule's language

(49 CFR 37.167(g)) will remain in effect, without change. Any transit

provider that may have instituted limits on the use of particular stops

by lift users, except as authorized by this provision, must cease

implementing the limits, as they are explicitly contrary to the

Department's ADA rule.

[[Page 25412]]

2. Requirements for Private School Transportation

The Department has decided to grant the petition of the National

Association of Independent Schools (NAIS) and adopt the proposed

private school exemption. In doing so, the Department emphasizes the

importance of ensuring that schools provide disabled students with

equal access to all of the schools' academic and extracurricular

programs. Private schools will therefore have to provide equivalent

transportation services to disabled students in order to be eligible

for the exemption. The final rule will apply the same standard for

equivalent service as is found in Sec. 37.105.

This change is being made because the current requirement that all

new buses purchased be lift equipped does not apply to most schools.

Public schools are exempt because their transportation services are

excluded from the ADA's definition of ``designated public

transportation.'' Schools with a religious affiliation are exempt based

on the ADA's exemption for religious organizations. Private elementary

and secondary schools that receive Federal financial assistance get the

same exemption as public schools if they provide equivalent

transportation services to students with disabilities and are covered

by section 504 of the Rehabilitation Act of 1973. By now, the

Department's regulation exempts all schools except private, non-

religious schools that receive no Federal financial assistance.

The NAIS petition pointed out the anomalous result of the

regulation applying more stringent and costly standards to schools that

receive no Federal financial assistance than is applied to schools that

do receive assistance. In response to the NAIS petition, the NPRM

proposed amending Sec. 37.27 to apply the same equivalent services

standard to independent schools as is applied to private schools that

receive Federal assistance. The majority of the comments received on

this aspect of the proposal supported extending the private school

exemption. However, many commenters did express concerns about disabled

students' access to school events. This concern was shared by the few

commenters who opposed the exemption.

The Department also shares these concerns. The independent private

schools will be subject to the same equivalent service standard that

other private schools must meet, namely that ``when viewed in [their]

entirety'' transportation services must be ``provided in the most

integrated setting appropriate to the needs of the individual and is

equivalent to the service provided other individuals * * *'' 49 C.F.R.

Sec. 37.105. Any test for equivalence under Sec. 37.105 would go beyond

providing equal access to transportation to and from school and include

transportation to and from all of the school's extracurricular

activities. This approach is consistent with the Department of

Education's requirement that non-academic and extracurricular

activities and services be provided in such a way as to ensure disabled

students an equal opportunity for participation. See 34 C.F.R.

Sec. 104.37(a)(1). In fact, the Department of Education goes so far as

to include transportation itself as a covered non-academic service. See

id. at Sec. 104.37(a)(2).

One commenter raised the possibility that a school that does not

purchase lift equipped buses because it has no disabled students might

exclude disabled applicants in the future to avoid the expense of

purchasing lifts. This concern could be valid. However, the possibility

of the rule change encouraging future discrimination in the admissions

process is speculative and the Department has neither the authority nor

the expertise to address admissions discrimination.

3. People Mover Gap Standards

The Department has decided to adopt the NPRM's proposal to allow

high speed AGT systems to comply with the same train door to platform

gap standard as other high speed rail systems. The petition was

submitted by the American Society of Civil Engineers (ASCE). ASCE cited

the wide variation in AGT system speed--5 to 80 miles per hour--and

requested that faster AGT systems be subjected to the less stringent

requirements applied to rapid and light rail systems. ASCE had studied

existing AGT systems and claimed that most do not meet current AGT

standards of one inch horizontal and half inch vertical gaps between

the train door and the platform edge. According to ASCE's analysis, AGT

systems that run at under 20 miles per hour can reasonably be expected

to meet the current gap standards. Faster AGT systems, however, require

vehicles with larger, more complicated suspensions that make it more

difficult to meet the smaller gap standard.

The proposal was not controversial. Only one of the 17 comments

received objected to the principle of a speed division and two objected

to the proposed 3-inch gap standard for the higher speed trains. The

proposal would allow AGT systems that operate at over 20 mph at any

point on the system to comply with the rapid/light rail gap standards

of a 3 inch horizontal gap and \5/8\ inch vertical gap. One commenter

suggested that the larger gap only be permitted on sections of the

track on which the AGT system actually ran at over 20 mph. The

suggestion is being rejected because it ignores the underlying

rationale for the speed division. If the AGT vehicle is to be capable

of traveling at higher speeds on other segments of the system, it will

require the more sophisticated suspension, which will in turn make the

smaller gap standard more difficult to meet at all stops.

ASCE pointed out that the Access Board's preamble discussion refers

to ``AGT vehicles that travel at slow speed,'' and subsequent Access

Board manuals suggest that the rapid/light rail gap standard should

apply to faster AGT vehicles. The Access Board has interpreted its

guidelines as permitting the construction that ASCE urges and the

Department's action today will prevent any conflict or confusion

between the guidelines and the rule.

4. 14-Day Advance Reservations

The proposal to remove the 14-day advance reservation requirement

generated significant interest among commenters of all types. While

approximately 130 commenters advocated keeping the reservation

requirement, most expressed dissatisfaction with current reservation

systems, suggested different reservation times, capacity allotments for

advanced reservations or demonstration projects before a change in the

requirement is made. Of the approximately 60 commenters who advocated

repealing the requirement, many made similar recommendations.

Approximately 45 commenters made 11 different suggestions for

changing the number of days allowed for advance reservations. Ten of

these commenters believed that the number of days should be flexible

and made no specific suggestion, five others suggested a range of 1 to

3 days, one commenter suggested 3 to 7 days and one suggested 7 to 8

days. Among the 27 commenters who endorsed a specific number of days,

there were seven different recommendations, ranging from 1 day to 10

days, with 7 days being the most popular (13 commenters).

Eight commenters suggested limiting the percentage of paratransit

capacity which could be reserved in advance. Most of these eight

commenters did not offer a specific percentage limit, those who did

were split between 40 and 50 percent. Three other commenters

[[Page 25413]]

suggested capping the number of trips an individual rider could reserve

in advance. Similarly, these commenters did not agree on any one

number.

The most common complaint about advance reservations was that they

caused an unmanageable number of cancellations and no-shows. Twenty one

commenters suggested penalties for riders who failed to show up for

scheduled rides. Twelve other commenters suggested that this problem

could be solved by requiring confirmation. Among these twelve comments

were three different suggestions for when the confirmation should be

made; there was also disagreement over whether the rider or the transit

provider should be responsible for making the confirmation call.

Finally, ten commenters complained that long reservation times

created prioritization, illegally favoring individuals with certain

types of disabilities or favoring certain types of trips. Eight

commenters pointed out that advance reservations drain the capacity of

paratransit systems, but seven others countered that the real problem

is limited capacity, which in turn causes reservation problems.

In light of the substantial dissatisfaction with the current 14-day

reservation requirement evident from the comments and the abundant and

varied suggestions for improving reservation systems, the Department

has decided to remove the requirement and allow local transit

providers, in conjunction with the riding public, the discretion to

establish reservation systems that best meet local needs. Under the

amended rule, transit systems can establish any reservation system that

meets the other requirements of this part, with a maximum 14-day

advance reservation period. Paratransit systems that wish to take

advantage of the flexibility provided by this amendment by changing

their reservation systems will have to ensure public participation in

the decision to change and local review of the functioning of the new

system. The public participation requirements of Sec. 37.137(b) will

apply.

One of the points commenters made in favor of retaining some

advance reservation capacity in paratransit systems was the added

security it affords concerning occasional, important, time-sensitive

trips. For example, if someone has airline reservations, the person

needs to be at the airport at a particular time on a particular day.

The person is likely to be more comfortable if he or she knows, prior

to the day before travel, that a paratransit reservation is confirmed.

While we do not believe that this kind of situation is sufficient,

given the downsides of an advance reservation requirement, to justify

mandating advance reservations, we suggest that, as transit providers

consult with their communities about reservation system changes, that

they explore means of addressing this concern.

It should be emphasized that, in order to meet Part 37

requirements, all paratransit systems must provide at least one-day

advance reservations at all times. One of the apparent reasons that

users take advantage of existing advance reservation systems in large

numbers is their apprehension that, if they wait until the day before

travel, the capacity of the system to serve them will have been

exhausted. This can lead, in turn, to the scheduling, no-show, and

cancellation problems cited in many comments. To make a short-term

reservation or real-time scheduling system work properly, transit

providers need to make sure that adequate vehicle and communications

capacity is available, such that systematic denials of service do not

exist to an extent that would constitute a capacity constraint (see

Sec. 37.131(f)(3)((i)(B)).

III. DOT-Proposed Adjustments to the Rule

1. Reduction of Paperwork for Paratransit Plan Updates

The NPRM proposed that transit authorities that had fully

implemented the paratransit requirements of the rule would no longer

have to send in annual updates to FTA. The thinking behind this

proposal was that, once full compliance had been achieved, annual

updates, and the process required to generate them, would become an

unnecessary administrative burden. Instead, there would be a simple

certification of compliance. If, for any reason, a transit authority

slipped out of full compliance, it would have to inform FTA and file

updates until it was once again in full compliance.

Transit agencies generally supported the proposed change, citing

the difficulty that many small providers have with annual paperwork

submissions. Some of these commenters said, however, that there should

be other means (e.g., additions to the National Transportation

Database) of monitoring and reporting data on paratransit costs and

service. Disability community commenters, on the other hand, favored

retention of the existing requirement. Some were suspicious of claims

by transit authorities that they were really in full compliance. A

common theme in these comments was that the public participation

requirements accompanying the annual update was a good opportunity for

the disability community to have input concerning service problems.

Indeed, some commenters said, public participation provisions should be

strengthened.

Some of the comments also pointed to a statutory issue. Section

233(c)(7)(B) of the ADA provides that the Department's regulations

shall require each public entity that operates fixed route service to

submit a paratransit plan to the Secretary within 18 months after the

effective date of the section and ``on an annual basis thereafter,

submit to the Secretary, and commence implementation of, a plan for

providing [paratransit] services.'' In its original ADA rule, the

Department implemented this requirement by establishing the annual plan

update requirement.

This requirement makes sense during the phase-in period for

paratransit service. While a transit authority is gradually building up

its paratransit service to the point where it meets all service

criteria, it is reasonable for the transit authority to send in annual

progress reports that have been developed through the public

participation process set forth in the rule. Once the transit authority

has fully met all the service criteria, however, there is no new

``progress'' to report. There is no implementation to ``commence,''

since the service required by the rule is already up and running, and

need only be continued for the transit authority to meet its ADA

paratransit obligations.

Once the transit authority is fully meeting all service criteria

(including the criterion concerning capacity constraints), submitting

an annual certification that it is continuing to meet all these

criteria as provided in its previously-approved plan meets the letter

and intent of Sec. 223(c)(7)(B). Of course, should the transit

authority fall below full compliance with all criteria, it would need

to inform FTA and resume substantive annual updates until it was once

again in full compliance.

In response to comments, the Department will make two modifications

to the proposed regulatory language. First, as noted above, there would

need to be a report to FTA if the transit authority fell out of

compliance. Second, we are adding a provision authorizing FTA to direct

a transit authority to conduct a public participation process and

submit a plan update if, in FTA's judgment (based, for example, on

consumer complaints about service), there is a reasonable basis for

[[Page 25414]]

concern about continuing full compliance.

Because the regulation already requires a mechanism for continuing

public participation (see Sec. 37.137(c)), the Department is not

persuaded that the public participation process accompanying plan

updates is essential to provide public input to providers about

paratransit service. While changes to National Transit Database

reporting concerning paratransit are outside the scope of this

rulemaking, the Federal Transit Administration will consider whether

some modifications to this report to provide more data about

paratransit service are desirable.

2. Visitor Eligibility

The NPRM requested comment on its proposal to clarify the

eligibility of visitors to use paratransit services. The proposed

change would have specified that the 21 days that transit operators

must provide service to eligible visitors was 21 days within a year

period, as opposed to 21 continuous days. The proposed regulatory text

would have read: ``A public entity is not required to provide service

to a visitor for more than 21 days per year from the date of the first

paratransit trip used by the visitor.'' (emphasis added). The

Department has decided to clarify the provision by specifying that the

maximum amount of service which transit providers must provide eligible

visitors is 21 days per calendar year. The Department will further

amend the rule to allow local providers the option of restricting the

21 days of service use to 21 continuous service days following the

first trip.

Transit providers were split on whether visitors should be eligible

for 21 continuous days or 21 days per year. Approximately half of the

providers who commented complained of administrative difficulties

inherent in keeping track of 21 days of service spread out over an

entire year. It was also pointed out that with 21 days per year,

paratransit operators have more difficulty managing capacity because

they cannot predict demand. Other providers disagreed, reporting no

administrative burden or capacity drain from allowing visitors 21 days

per year. Capital Metro of Austin, Texas believes that 21 continuous

days of eligibility is insufficient to meet the needs of frequent

visitors, such as college students returning home on breaks, and

instead allows visitors six months of service before requiring them to

apply for local eligibility. Individuals with disabilities and advocacy

groups almost all favored 21 days per year.

When an individual with a disability travels to another city, it

remains the Department's policy that he or she have open and ready

access to local mass transit without any need to have planned the trip

in advance. Indeed, often the traveler will be unfamiliar with the new

city and have no way to know in advance what his or her travel needs

will be. For this reason, the Department's amendment to this provision

emphasizes that in no case may a transit provider require a visitor to

apply for or be granted eligibility certification before being able to

use the provider's paratransit service as provided in Sec. 37.127.

Given the desire commenters expressed for clarification of how the

visitor eligibility provision is intended to work, and the likelihood

that there may be many situations in which individuals (e.g., business

travelers, weekend trip visitors) will make repeat trips to a given

city during a year, the Department has decided to require that transit

authorities permit a visitor to use the service on any combination of

21 days throughout a 365-day period. For example, if Ms. Smith first

uses the service on April 1, she could use the service on April 2-6,

May 17, July 10-15, October 7, etc. until she had used the service on

21 days in the period extending through March 31 of the next calendar

year. The way that XYZ chooses to implement visitor eligibility should

be made part of its paratransit program and visitors should be provided

materials clearly explaining how XYZ's visitor policy works.

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

Section 37.101 contains the vehicle acquisition requirements for

private entities not primarily engaged in the business of transporting

people. Paragraph (d) of the section applies to private entities which

operate demand responsive systems which purchase vehicles with seating

capacity over 16. When these entities purchase such a vehicle, it must

be accessible to individuals who use wheelchairs, unless the entity can

show that when viewed in its entirety, its system provides equivalent

service to individuals with disabilities. The standard for equivalent

service is found in Sec. 37.105, to which paragraph (d) refers the

reader.

Neither Sec. 37.101 nor the ADA has any vehicle acquisition

requirement for private entities not primarily engaged in transporting

people which operate demand responsive systems which purchase vehicles

with seating capacity of 16 or less. This has created the mistaken

impression that there are no service standards which apply to these

systems. The ADA does require private operators of demand responsive

systems to provide equivalent service to individuals with disabilities

regardless of whether or not they purchase any new vehicles. This

requirement is contained in Section 302(b)(2)(C) of the ADA and is

reflected in the Department's regulations in Sec. 37.171. Section

37.171 applies the same standard for overall equivalent service as is

found in Sec. 37.105.

To eliminate the confusion which has resulted from these

requirements, this final rule adds a new paragraph to Sec. 37.101 which

explicitly states that private entities operating demand responsive

systems that purchase vehicles with capacity of 16 or fewer must

provide equivalent service to individuals with disabilities. The new

paragraph refers the reader to both the requirement stated in

Sec. 37.171 and the standard articulated in Sec. 37.105.

4. Personal Care Attendants

The NPRM requested comments on the question of how to define a

personal care attendant (PCA), and whether further definition was

necessary, for the purposes of determining eligibility to ride

paratransit free while accompanying a paratransit eligible individual.

Half of all comments received on the NPRM addressed this issue.

Individuals with disabilities and advocacy groups were overwhelmingly

opposed to any attempt to further define a PCA, often expressing the

opinion that further definition would constitute an invasion of

privacy.

Transit authorities were divided on the question, with eight

believing that there was no problem and no further action warranted,

and more than a dozen believing that something should be done. Three

transit authorities suggested registering the PCAs themselves, and

three more believed that only PCAs needed for the trip should qualify,

not those whose services were required at the destination. Several

commenters suggested that individuals who needed PCAs should register

that need as part of the application process--something that the

Appendix already allows paratransit providers to require. Three of the

transit authorities that supported requiring riders to register the

need for a PCA went further to suggest that individuals who have

registered a need for a PCA be denied service when riding alone.

The Department has decided not to amend the regulatory text

regarding PCAs. We wish to reemphasize, however, that the existing

definition of

[[Page 25415]]

a PCA does not distinguish between PCAs whose services are required

during the paratransit ride and those required at the destination.

Limiting riders to PCAs who were required on the paratransit trip could

leave a rider unable to function at his or her destination, thereby

making the trip meaningless.

Finally, several commenters suggested requiring those who register

as using a PCA be denied service when riding alone. The Department did

not adopt this suggestion. Riders who use a PCA for destination needs

may well have varying needs depending on the trip purposes. Requiring

these riders to be accompanied by a PCA even when they do not expect to

require assistance will create unnecessary expenses for the rider and

further burden the seating capacity of the transit provider. Other

riders may have varying levels of assistance needs over time, and

requiring these riders to either further define their needs in advance

or always travel with a PCA is unjustifiably intrusive.

5. Equivalent Facilitation

The final substantive change proposed in the NPRM was to delete the

requirement that an entity demonstrate an inability to comply with

existing requirements as a condition of obtaining a determination of

equivalent facilitation. As explained in the NPRM, the original purpose

of the provision was to limit departures from established regulatory

standards and promote uniformity and predictability. The Department was

concerned, however, that requiring a showing of inability to comply was

having the effect of stifling innovation and discouraging the

development of new technologies that might provide equal or even

greater accessibility at a lower cost.

The discussion of this change that appeared in the preamble of the

NPRM addressed only whether a petitioning entity should have to

demonstrate its inability to comply. A drafting error in the proposed

regulatory text created the impression that the amendment would have

gone further, eliminating other reporting requirements associated with

the petition for equivalent facilitation. The Department apologizes for

the error and wishes to note that at no time were the other

requirements considered for removal.

Commenters were split on this proposal. All commenting transit

authorities and providers agreed with the proposal, as did a few other

commenters. Many of these commenters clearly conditioned their support

on the Department ensuring that the change did not allow any decrease

in accessibility. Members of the disability community voiced strong

dissent to the proposal. Almost all of the comments filed by

individuals with disabilities and their advocacy groups viewed the

change as a weakening of the ADA's accessibility standards and many

expressed distrust of the Department's ability to ensure legitimate

equivalence.

Recognizing that significant costs can be associated with ADA

compliance, the Department feels that to ensure the most widespread

long-term compliance, it must allow as much flexibility as possible and

encourage the development of new, more cost effective technologies.

Accordingly, the requirement that an entity show that it is unable to

comply with current standards is being eliminated from the petition for

equivalent facilitation. Petitioning entities must continue to show

that their alternative method actually provides equal or greater

accessibility. This point protects the interests of the disability

community concerning maintaining the strength of accessibility

requirements. The other reporting requirements of the petition found in

Sec. 37.7 and Sec. 37.9 will also remain, such as demonstrating the

effectiveness of the alternative measures for compliance and

documenting the public participation used in developing the alternative

method. The Department notes that the original purpose of the

requirement, encouraging uniformity and predictability, remains an

important goal.

6. Clarification of Appendix Statement on Vehicle Lift Dimensions

The NPRM proposed to clarify a reference to the Part 38 standards

for accessible vehicles. Appendix D to Part 37 contains explanatory

statements and guidelines for Part 37. In Appendix D, section 37.13,

the discussion of section 37.13 of the rule refers to the ``new 30'' by

48'' lift platform specifications.'' This statement was intended to

refer to the Part 38 standards for lift platforms. The reference

oversimplifies the Part 38 standard, which requires 30 x 48 inch

dimensions at a height of 2 inches above the platform base, but only

requires a width of 28.5 inches at the base itself. To eliminate the

confusion created by the reference, section 37.13 of Part 37, Appendix

D will be amended to replace the words ``new 30'' by 48'' '' with the

words ``Part 38''.

7. Typographical Errors

The typographical errors in Secs. 37.3 and 37.11(a) will be

corrected as described in the NPRM.

Regulatory Analyses and Notices

This final rule is not significant under Executive Order 12866. It

is significant under the Department's Regulatory Policies and

procedures, because it amends a significant rule having substantial

public interest. We expect economic impacts to be minimal, so we have

not prepared a regulatory evaluation. There are no Federalism impacts

sufficient to warrant the preparation of a Federalism assessment. The

Department certifies that the rule will not have a significant economic

impact on a substantial number of small entities.

Issued this 7th day of March, 1996, at Washington, DC.

Federico Pena,

Secretary of Transportation.

For the reasons set forth in the preamble, the Department proposes

to amend 49 CFR Part 37 and 49 CFR Part 38 as follows:

PART 37--[AMENDED]

1. The authority citation for 49 CFR Part 37 is proposed to

continue to read as follows:

Authority: Americans with Disabilities Act of 1990 (42 U.S.C.

12101-12213); 49 U.S.C. 322.

2. The authority citation for 49 CFR Part 38 is proposed to be

revised to read as follows:

Authority: Americans with Disabilities Act of 1990 (42 U.S.C.

12101-12213); 49 U.S.C. 322.

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

follows:

Sec. 37. 27 Transportation for elementary and secondary education

systems.

* * * * *

(b) The requirements of this part do not apply to the

transportation of school children to and from a private elementary or

secondary school, and its school-related activities, if the school is

providing transportation service to students with disabilities

equivalent to that provided to students without disabilities. The test

of equivalence is the same as that provided in Sec. 37.105. If the

school does not meet the requirement of this paragraph for exemption

from the requirements of this part, it is subject to the requirements

of this part for private entities not primarily engaged in transporting

people.

Sec. 37.3 [Amended]

4. In part 37, Sec. 37.3 the definition of the term ``Designated

public transportation'' is amended by replacing

[[Page 25416]]

the word ``containing'' with the word ``continuing.''

5. In Part 37, Sec. 37.7 is amended by revising paragraph

(b)(2)(ii) and removing and reserving (b)(2)(iii) to read as follows:

Sec. 37.7 Standards for accessible vehicles.

* * * * *

(b) * * *

(2) * * *

(ii) Specific provision of part 38 of this title concerning which

the entity is seeking a determination of equivalent facilitation.

* * * * *

6. In Part 37, Sec. 37.9 is amended by revising paragraph

(d)(2)(ii) to read as follows and removing and reserving (d)(2)(iii):

Sec. 37.9 Standards for accessible facilities.

* * * * *

(d) * * *

(2) * * *

(ii) Specific provision of Appendix A to Part 37 concerning which

the entity is seeking a determination of equivalent facilitation.

* * * * *

Sec. 37.11 [Amended]

7. In part 37, Sec. 37.11(a) is amended by replacing the words

``subpart F'' with the words ``subpart C.''

8. In Part 37, Sec. 37.101 is amended by adding a new paragraph

(e), to read as follows:

Sec. 37.101 Purchase or lease of vehicles by private entities not

primarily engaged in the business of transporting people.

* * * * *

(e) Demand Responsive System, Vehicle Capacity of 16 or Fewer.

Entities providing demand responsive transportation covered under this

section are not specifically required to ensure that new vehicles with

seating capacity of 16 or fewer are accessible to individuals with

wheelchairs. These entities are required to ensure that their systems,

when viewed in their entirety, meet the equivalent service requirements

of Secs. 37.171 and 37.105, regardless of whether or not the entities

purchase a new vehicle.

9. In Part 37, Sec. 37.127(e) is revised to read as follows:

Sec. 37.127 Complementary paratransit service for visitors.

* * * * *

(e) A public entity shall make the service to a visitor required by

this section available for any combination of 21 days during any 365-

day period beginning with the visitor's first use of the service during

such 365-day period. In no case shall the public entity require a

visitor to apply for or receive eligibility certification from the

public entity before receiving the service required by this section.

10. In part 37, Sec. 37.131(b)(4) is revised to read as follows:

Sec. 37.131 Service criteria for complementary paratransit.

* * * * *

(b)* * *

* * * * *

(4) The entity may permit advance reservations to be made up to 14

days in advance of an ADA paratransit eligible individual's desired

trips. When an entity proposes to change its reservations system, it

shall comply with the public participation requirements equivalent to

those of Sec. 37.131(b) and (c).

* * * * *

11. In Part 37, Sec. 37.135 is amended by revising paragraph (c) to

read as follows:

Sec. 37.135 Submission of paratransit plan.

* * * * *

(c) Annual Updates. Except as provided in this paragraph, each

entity shall submit an annual update to its plan on January 26 of each

succeeding year.

(1) If an entity has met and is continuing to meet all requirements

for complementary paratransit in Secs. 37.121-37.133 of this part, the

entity may submit to FTA an annual certification of continued

compliance in lieu of a plan update. Entities that have submitted a

joint plan under Sec. 37.141 may submit a joint certification under

this paragraph. The requirements of Secs. 37.137-37.139 do not apply

when a certification is submitted under this paragraph.

(2) In the event of any change in circumstances that results in an

entity which has submitted a certification of continued compliance

falling short of compliance with Secs. 37.121-37.133, the entity shall

immediately notify FTA in writing of the problem. In this case, the

entity shall also file a plan update meeting the requirements of

Secs. 37.137-37.139 of this part on the next following January 26 and

in each succeeding year until the entity returns to full compliance.

(3) An entity that has demonstrated undue financial burden to the

FTA shall file a plan update meeting the requirements of Secs. 37.137-

37.139 of this part on each January 26 until full compliance with

Secs. 37.121-37.133 is attained.

(4) If FTA reasonably believes that an entity may not be fully

complying with all service criteria, FTA may require the entity to

provide an annual update to its plan.

Appendix D [Amended]

12. In Part 37, Appendix D, the paragraph entitled ``Section 37.13

Effective Date for Certain Vehicle Lift Specifications'' is proposed to

be amended by replacing the words ``new 30'' by 48'''' with the words

``Part 38.''

Sec. 38.173 [Amended]

13. In part 38, Sec. 38.173(a) is amended by adding the words

``(i.e., at a speed of no more than 20 miles per hour at any location

on their route during normal operation)'' after the words ``slow

speed.''

14. In part 38, Sec. 38.173(d) is amended by adding the following

sentence at the end thereof, to read as follows:

Sec. 38.173 Automated guideway transit vehicles and systems.

* * * * *

(d) * * * AGT systems whose vehicles travel at a speed of more than

20 miles per hour at any location on their route during normal

operation are covered under this paragraph rather than under paragraph

(a) of this section.

[FR Doc. 96-11935 Filed 5-20-96; 8:45 am]

BILLING CODE 4910-62-P