Transportation for Individuals With Disabilities

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

[[Page 51672]]

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

[[Page 51673]]

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

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