Federal Register, Part IV, Department of Transportation, 49 CFR Parts 27, 37 and 38, Transportation for Individuals With Disabilities; Final Rule

196 Pages·1991·9.6 MB·English

by  United States Office of the Federal Register

Friday
September 6, 1991
Part IV
Department of
Transportation
49 CFR Parts 27, 37 and 38
Transportation for Individuals With
Disabilities; Final Rule
45584 Federal Register / Vol. 56. No. 173 / Friday, September 6, 1991 / Rules and Regulations
DEPARTMENTOFTRANSPORTATION transit industry, and otherinterested with its ADAobligations. At the same
commenters. In addition, theUrban time, section 501 ofthe ADAprovides
49CFR Parts27,37and 38 MassTransportationAdministration thatnothing in the ADA shall be
(UMTA) held sixpublichearings, at construed "to apply a lesserstandard"
[Docket47483;Notice91-14] whichwe received approximately120 than section 504 or agency regulations
spoken and written comments. implementing section504.
RIN2105-ABS3
Before issuing the NPRM, inJanuary One comment suggested clarifying
Transportationfor IndividualsWith 1991, the UrbanMassTransportation that 504 requirements apply to private
Disabilities Administration (UMTA) sponsored a as well as public entities. The rule does
meetingofa Federal Advisory coverall recipients, and language
AGENCY:Department ofTransportation, Committee, which included 26persons emphasizing this pointhas been added.
Office ofthie Secretary. representing transitproviders, state Part27includes references to the
action:Final rule. goverrunents, disabilitygroups, the UniformFederalAccessibility Standard
Architectural andTransportation (UFAS) as the standard that
SfiUnMalMAruRlYe:imTphleemDeenptairntgmetnhte is issuing a BtahrerSieecrsreCtoamryplainadncUeMBToAa.rdA, tnhuemObfefirceofof mcounssttrmuecetti.onAacnodmamletnertatsiuogngseosftefdacilities
transportation provisions ofthe observers from otherorganizations also updatingreferences toUFASin the
Americans withDisabilities Act (ADA). contributed to the discussion. The section504rule, so that there would be
The rule contains provisions on principal subjects discussedwere consistency betweenportions ofthat
acquisition ofaccessible vehicles by service criteria for complementary rule and Department ofJustice (DOJ)
private andpublic entities, requirements paratransit, undue financialburdenfor rules that apply to airports and other
forcomplementaryparatransitservice complementary paratransit, and coveredentities (theDOJ rules, like part
bsyysptuebml,icanedntpitrioevsisoipoenraotfing a fixedroute oinpeJruanteio1n9a9l1itsosudeiss.cuTshsisthgerocuopmmmeetntasgain 3s7t,anrdealrydosn).tWheenheawveAcdcoensessBooawridthfaacnility
ntroanndsipsocrrtiamtiinoantsoerryviaccec.esTshieblDeepartment aanndd tphreovDiedpeadrtsmuegngte'stsiroensspaobnosuetswtohatthem amendment to § 27.67(b) ofthe rule,
which defines the applicable
is also amending theDepartment's rule the final rule should say. Advisory accessibility standardforpurposes of
implementing section 504 ofthe Committee discussions ofissues are
part27.
RehabilitationActof1973 in lightofdie notedin the preamble.
ADArule. We wish to thankthe members ofthe Finally, there were a fewcomments
ECOC1ass269FuucnFF,9bbFtdRR1ppE1o,aa9CCbpp9rreTeaa2ttxtIrrr.hcVttBFee7sE,,2rpa73eDwt1s7oA9haft9Tsiarh1uEacene.bSnhdep:Tddfaeah3fTrlrt8eetheehctaeetaCeirimfroepvfaenereeesdnoncfOevddtfosciiefmitssvcegiuesotnnobubiJanpvbteatesaprsniaroourt7tfn,atoDrs4o4y9f9Bas ApccmACerrroeduoxDenlovmsaaasvAimtmtttisipiirdwtoivoluesotrencereysrttstheoikohCi'vafibpoestnnhemokdcaodgmirapeenwetinlptgahti,hrlesctbeiouoaeedzrancrienecthiasddfrha,tfiabtiocabtihroowoluennoitotsdiphtperseeyrwktsirtoeuhicroameernottsiaegmiAi.scvmmdheaTeeuvir,gioneaafosvinnioosttdnidrhygtey cppapwspcdururoyiorhbitossnnoovlhctpcnpaioueoeeootrcsmsrcsepis.anteeteliiendytrTnntohawhtigonpetiotefretypwuioisrDislveatesodeisrdncuippastreniohaui4sesosarorci9nnetvibtedCnmeaii5rvvennF0e§aoi4nRqppmnl,t2aupgva7r3ltie.ist7Uihrs1d.seee9M22dd(im73Ae,tcn,Terl)Dbnua.eaAAetntnnTsl'siddhfionsetiutgwrwosn.tdethshee
FORFURTHER INFORMATIONCONTACT: thisgoal. —
Robert C. Ashby, DeputyAssistant Section-by-Section Analysis SubpartA General
General Counsel forRegulation and This portionofthe preamble discusses Section37.1 Purpose
TErrnoafonomsrpc1oe0rm4t2ea4nt,ti,oWnaD,seh4pi0an0rgt7tmtoehnn,SttrDoeCfe,t,2S05W9.0,. escoaurcmrhmeassrepicoztniidoningngotfhpetohrcetoifmoimnnaeolnfrttuslheeo,nnottihece of secTthieorn.eTwheerreenhoavceombmeeenntosnloynmtihnisor
(202) 36&-9306 (voice); [phone] proposedrulemakingandproviding the editorial changes to its text.
(TDD), orSusanSchruth, Office ofChief Department's responses to the Section37.3 Definitions
CA92a3do9c1mcu76ien9.sns(sie(Tisl2bDt,0lrD2U)ea)t.r3fib6oCoa6rno-nm,p1aiM0tse1saas1smwosie(flvlToatirdhbcadeeenr)res;muspla(soe2,dr0ite2rna)ot3oi6om6n- ctdoehfotemtamhDieleenpipttarssor.ivtnimItseneinroatpnprseeptxoeapfntldtiaihoienxnsfaDininntdaolgctrrohuenilasset.terrruulcet,ion rrteehshaSptaeobcinitnsliiinobtonialtc5ii0atoi1sneeosAfscuhttnohdbueeelArdlDseaesAncsteeminnoatenikdte5yb'0ses4citoafculsteheaer
available onrequest. Section27.19 Amendments toDOT ofthe ADA.
SUPPLEMENTARY INFORMATION:This Section504Rule Since an optionforcompliance under
portion ofthe preamble discusses the The Department is amendingits section504is accessible fixed route
basis and purpose ofpart 37. It also existingsection 504rule (49 CFRpart27) transportation, entities such as the
responds to comments on the to avoid potential overlapping, examples mentioned above wouldbe
Department's notice ofproposed duplication, orconfusionbetweenADA held to a comparable standard, since
rulemaking on this subjectissued April and504requirements. Forthis reason, a private entities primarily engagedin the
4, 1991 (56FR13856) and highlights numberofprovisions ofthe 504rule are business ofproviding transportation
provisions inpart 38, the Department's beingremoved. The effective date of must purchase accessible newvehicles.
promulgation ofthe accessible vehicle some ofthese removals isJanuary26, Accordingly, we are deleting the
specifications developed by the 1992, in orderto avoidgaps inregulatory proposedparagraph.
Architectural andTransportation coverage between now and then. Wehave added a number ofentries in
Barriers ComplianceBoard. Thebasic relationshipbetween the definitions section ofthe rule.These
The Department received over260 section504and the ADA is that a additionspickup definitions from the
written comments on theNPRM, froma recipient ofDOTfunds complies with its Department ofJustice (DOJ) ADA
wide variety ofdisability community. section504 obligations by complying regulations and theAccess Board
Federal Register / Vol. 56, No. 173 / Friday, September 6, 1991 / Rules and Regulations 45585
guidelines. The additions are implications ofthis change forcertain statutory text, and so we will delete it
"accessible," "alteration," "automated specific systems are discussed in the from the regulatory text.
guideway transit system," "bus," "high discussion ofSubpartBin thepreamble Thereasonfor the "includingbutnot
speedrail," "lightrail," "rapidrail," and to this document. limited to" language has todowiththe
"service animal."The Departmentalso A fewcomments addressed structure oftide III ofthe ADA. Private
has made editorialmodifications to the "disability." Some suggested removing entities notprimarily engaged in the
definitionof"disability" to beconsistent "permanent ortemporary," suggesting business oftransportingpeople donot,
wiWthethreecDeOiJveddesfeinvietriaolncoofmtmheenttesrm.on the DthOaJt tdheifsinliatnigounadgoeeissnuontneicnecslsuadreyt.heTshee bpuyblsitcatturtaonrsypdoerftiantiitoinons,eprvriocvei.dTehsepecified
definition of"commuterbus service." words, so wehave deletedthemfor definitions offixed route and demand
This tenn is importantbecause the ADA consistency. In ourview, the terms are responsive transportationmustapplyto
doesnot require public entities to unnecessarybecause any condition that these entities as well aspublic entities
provide complementaryparatransit with meets the criteria ofthe definition, andprivate entitieswho areprimarily
respect to commuterbus service. One of regardless ofits duration, is a disability. engagedinthebusiness oftransporting
these comments suggested the definition Othercomments suggested adding people. Forclarity, the languagehas
be clarifiedso as not to exclude a specificmention ofsuch conditions as beenreorganized tomakeitclearthatit
service thatprovides some service cognitive orenergy deficient disorders applies only toprivate entities.
opposite to themain rush hourtraffic and environmental illness. TheDOJ TheDepartmentreceiveda few
flow.The existing definition, which talks definition doesnot cite these conditions comments suggestingamendmentofthe
ofservice "predominantly," ratherthan specifically.The list ofconditions in the definition of"intercitypassengerrail
exclusively, inone direction, doesnot definition, in any case, is not exhaustive, car" to encompassrailcars onsystems
exclude such service. anddoesnot exclude unspecified run by entities otherthanAmtrak.This
Anothercomment suggested that the conditions thatmeet its criteria. For issueis addressed in theApplicability
term specificallyinclude dedicatedbus these reasons, we didnot add mention subpart. Anothercommenterwanted
rsseeerravvsiioccneeabwtloaescoteomxmicnueftpeertretdhraaftirlcoromomuttmheuest.AeIDrtAib'suss mofoOrtnheeedcecotonadmiilmteeidnontdsee.frinsiutgigonesotfe"dmaenmtuaclh toahncilcsyodmteomfiornadiialttipoianosntsosensipgneetcreinfcdyaertdshawftoirtithraepvpelniueed
opdtrfaiarfcnafsoteirrmtaemnnsuscetiervetsirrbceees.qteurwTivyeirpeceinecmaetalnhnlteyd,bcrehceacgoraumaulcmsatueretrmoiefasrtstibshcuess pdcirosomapmboielsniettdy,.r"wuhlDeiOsc,Jhadwniaddsnwoeatlstaohdiomnpaktditethbitesostittso ppnaoastsssieennntggeeenrrdse.rdaWitleoroaracedccsoohgmanmivozedecatathreastthatare
service does not attempt to coveran rtheemadietnaiclosnsoifsttehentdewfiitnhitDiOoJn.ofModriseaobvielrit,y pdaosrsmeintgoerrysca(er.sg.,fobrawgograkgeersc)a.rsW,hile we
area comprehensively, butratherhas a
are probably somewhatless important do not think that these cars could easily
lliimmiitteeddrnouumtbeesrtroufctourriegicnosnannedctinga in theDOTrule than in the DOJ orEqual be confusedwith railpassengercars,
dienstteinndaetdiotnos.inTtyeprifcaaclelyw,itthhiasnsoetrhveircemiosde E(mEpElOoC)ymreunlets,OspipnocretuitniistyfuCnoctmimoinsalsion lthaenrgeuaisgeno(whhaircmhitnheadAdcicnegssthBeoraerqdueasltsoed
wofitthratnhsepocrotnanteicotnio(en.g.o,cctuhreraiuntgoamtobaiplaer,k- atbhialnitpyrteociusseedfiiaxgendosriosutoertcrlaanssisti,fircaatthieorn haWsedonhea)v.e addeda reference toprivate
and-ride facility).Trips are often ofa disability, which is most relevant to entities inthe definition of"operates."
primarily forlimitedpurposes (e.g., work the provision oftransportation unde^ This isanimportantdefinition, which
this rule. forms the basis forthe "standin the
trips).
We construe the commuterbus In the definitionof"facility," the shoes" provision affectingcontractors to
category to applyto arange ofservices Departmenthas deleted the reference in othertransportation providers.
which differ significantly from the model DOJ's definition to "rolling stock and Comments suggested that itwas
ofurban mass transportation fixedroute otherconveyances." In the DOTrule, reasonable toapply the "standin the
service to which Congress attached the there is a cleardemarcationbetween shoes" concept to private contractors to
complementaryparatransit obligation. facilities andvehicles, andwebelieve private entities, as well asprivate
We
For this range ofservices, because of that the definition will be clearerforthe contractors to public entities. agree,
theirdifferences from urban mass deletion ofthese terms. and this addition isconsistentwith this
transportation fixed route service, The most frequent subjects of determination.
paratransit is not a necessaryor comment were the definitions of"fixed The Departmentreceiveda few
appropriate complement. route" and "demandresponsive" comments on the definitionof"station."
Anumberofservices otherthanwork- service.Themost frequent comment Two asked fortne additionofa
trip oriented commuter service are was that the definitions strayed too far definitionof"flag stop," a term used in
within this range. The commenter's from theADA statutory definitions of the NPRM definitionof"station." We
dedicated service to commuterrail, the terms. Commenters objected to have added a definition ofthis term,
some airport shuttle services, public references to the presence orabsence of derived from theDepartment's 1979
university shuttles, orintercityrail an advance request for service as a section504rule as a parenthetical inthe
connecterservices allhave limited distinguishingpoint between the two "station" definition. Othercomments
routes and limited origins and kinds ofservice. They also objected to noted that the definition applies to
destinations, do notattempt toprovide the definition's statement that the terms intercity andcommuterbutnot tolight
areawide transportation service, appUed to transportation "includingbut andrapidrail systems. The "station"
interface with one ormore notlimited to" designated and specified definitionin the ADA itselfshares this
transportation modes, and have limited transportation services. While an limitation.The additionofdefinitionsof
purposes. Forthis reason, we have advance request forservice is a key "light rail" and "rapidrail" shouldhelp
included systems with these characteristic distinguishing fixedroute to provide clarityin thisarea.
characteristics in the definition of and demandresponsive service, this TheDepartmenthas addeda new
"commuterbus service."The characteristic is not included in the definitionof"transit facility."This
45586 Federal Register / Vol. 56, No. 173 / Friday. September 6, 1991 / Rules and Regulations
definition relates only to theAccess prohibiting an entity fromrequiringan DOJ ADArulemakings, the rule will
Boardguideline requirement forTDDs, individualwith a disability to use a prohibit attendantrequirements. Ifa
which applies to transitfacilities. Only priorityseat, ifthe individual doesnot person is not violent orengagingin
closed structures the primary functionof choose to use such a seat. disruptivebehavior the entityis
TwmhhaiedceahissmueborjfveectstheatsodetafhietnriTatnDisoiDntirfsaecqtiouliiartvyeomaierdneta. NisPsTuRheeMroefwoswpueelrcdieaplarocfhheiawbrigtce.osm,Dimwseahnbiitclshitotynhgetrhoeups riesenqgvuiaoiglrieenndgt,tionsepirrlilooevugiasdlleycosdneirdsvuriuccptet,.ivhIeof,waeopvreerrs,onthe
potentiallyburdensome mandate for that commented supported the ban. providermay, consistentwith
TDDs in structures notprimarilyused Transportationprovidersgenerally established procedures forall riders,
fortransportation purposes. Consistent wanted assurance that the provision refuse to carry the passenger. The mere
withAccess Board terminology, the term wouldnotprohibit nondiscriminatory fact that a passengermay, because ofa
"text telephone" is used interchangably charges for service, which is indeed the disability, offend orannoyotherpersons
in the rule with "TDD." case. The provision also does not is not a reason to deny service,
In the definition of"used vehicle," we prohibit charges otherwise permittedby however.
have deleted a reference toJune 1990 as the rule (e.g., fares forcomplementary TheDepartment has added a
caotnrsiigdgeerreddataesfuosread.veThhiicsledabteei,nwghich praoruatterfaanrsei)t. thatmay be twice the fixed provision, dravm from theDOJ titleIII
derived from the ADA's legislative One commenterasked forprovisions rules, that prohibits denials ofservice or
hhaiincostcwtoeeosversfyeif,brei,chltaiatdinynyrrAeveuleqgehuuviisacrntlecem1ee9w9nwi0tit.sthhNfpiortriwhsoet,rwvueeshneitcilse nivtfihoaotntlhcaewotyomiohpunlalsiddaaadnncedpeeoflmofirocerysntiopitcrtucoiaahetssiiibonoinontstainlitngovwibhoeliacitnhioans woictinohtsveuherrrtaadhngiicsesecrorucriloemr.miantpeaatndoeyrcyirsteirqoeunaistr)meeimnnetcnotbnsasis(see.tdge.,notn
considered tobe "used." driverreasonablybelieved that he or Section37.7 StandardsforAccessible
Inresponse to comments concerning she could notassist thepassenger Vehicles
the coverage ofvanpools under the rule, without significantrisk ofinjury. On the
we have added a definition of firstpoint, while theDepartment This sectionprovides that a vehicle is
"vanpool." This term refers to encourages clearly statedpolicies considered to be accessible ifit meets
ridesharing arrangements forwork trips requiring compliance with the ADA, we the Architectural andTransportation
inwhich the driveris, essentially, a do notbelieve thathaving such a policy Barriers ComplianceBoard (Access
vdoilsucnutseseerd.iTnhtehecoAvpeprlaicgaebiolfivtaynspuoboplasrti.s iasresauffoifcAieDntAfocromcpolmipalnicaen,cee.mAplsoyinerasnyare Bhoaasridn)cgouripdoerlaitneeds,inwthoiicths rtuhleesDeapsa4r9tmCeFnRt
defSienvietriaolnocfom"wmheenetlschaadird.r"esSsoemdethe hacetlidonrse.sponsible fortheiremployees' pnaurmtb3e8r.TohfecroemwmeernetsaasbuobsuttantthieaAlccess
suggested itbe expanded (e.g., to Onthe secondpoint, theDepartment Boardguidelines, most ofwhichwere
iitnbcleucdlearciafnieedsoarncdownatlrkaecrtse)d,(oe.tgh.,erwsitthhat dtooepsronvoitdebealigeevneeriticwoeuxlcedpbtieoanptporotphreiate tasratnosmDiOtTt.edDtOoTthewoArckceedssclBoosaerldywaistwhell
respect to three-wheeled scooters and requirement to provide service to the AccessBoard to work outproblems
electric wheelchairs). Most commenters persons with disabilities. We are which the commentsraised, on such
supported the definition's inclusionof concerned that such an exception could subjects as liftplatform dimensions and
"non-traditional" mobility devices. One be toobroadly interpreted. railcar end doorand vestibule
comment suggested the substitutionof Drivers oftaxis orshuttles routinely dimensions. The AccessBoard's
the term "mobility device" for assistpassengers with stowing luggage resolutions ofthese and otherissues,
"wheelchair," which we are not doing which is muchheavierthan mostfolding and theBoard's responses to comments,
sstiantcuete".wWheeelhcahvaeiri"ncisorupsoerdatiendthiento the wofhteeenlcahbalierst,o ttrhaenussfeerrstoofawvheihicchlearseeat' AarcecessetsfBoorathrdingutihdeeplirneeasm.bTlheetomotshte final
definition the Access Board's definition on theirown. Persons with more severe important issues are summarizedin the
ofthe related term "common mobility impairments, who use electric preamble to part 38.
wheelchair" (i.e., a wheelchair thatfits wheelchairs, will, inmost cases, be The final version ofthe AccessBoard
on a 30" x48" liftplatform and does not unable to use an automobile and, in guidelines includes the concept of
weigh more than600pounds when most cases, their wheelchairs cango up "equivalentfacilitation." Section37.7(b)
occupied). a ramp under theirown power. Heavy reflects this addition. Equivalent
Section37.5 Nondiscrimination liftingwill typicallynot be required of facilitationis a concept that has existed
the driverofa lift-equipped van. inthe facilities accessibihty standards,
Some commenters withvisual Consequently, it is likely thatproblems butwas not included in the ATBCB's
impairments asked for the addition ofa ofthe kind envisioned by the commenter proposed vehicle standards. Briefly,
provisionprohibiting transit providers will not occurfrequently. Ifoccasional equivalent facilitationprovides an
fromrequiringindividuals with problems do occur, they are betterdealt alternative to strict compliance with the
dciosmambielnitteiers,twohuoseisprbiloirnidt,ytsoeladtso.fOane weintfhorocnemaecnatsper-obcye-scsa,sewhbearsiesaillntthhee isspencoitfiacalteisosnesrsotfaandpaarrdt,icbuultaritstdaonedsard. It
personal experience inwhich a driver specifics ofa situation canbe acknowledge that there maybe unique
stopped the bus and called the police considered, thanbyageneralprovision circumstances that make it impossible
because the commenterinsisted on ofthe rule. foran entity to comply literally with the
standing rather than sitting in an Commenters from disabilitygroups standard.
"elderly andhandicapped" seat. The asked that there be a prohibition on Equivalent facilitation applies toboth
existing language ofparagraph (b) of requirements forattendants, while some rail and non-rail vehicles, and could
this sectiongenerally covers such transitproviders asked for the discretion include a varietyofapproaches to
situations. However, to ensure that the to require them (e.g., forsomeone with a providingaccess. Forexample, in the
requirement is clearly understood, we mental disability who had a history of case ofa rail system thathad difficulty
have added language specifically violent conduct). Consistentwith the meetinghorizontalgaprequirements, it
Federal Register / Vol. 56, No. 173 / Friday, September 6, 1991 / Rules and Regulations 45587
mightbe possible forthe use ofa Section37.9 StandardsforAccessible ineffectwhen the work was done, the
bridgeplate (and the deployment of TransportationFacilities facilitywill be considered accessible.
personnel toput the bridgeplate in Section37.13(b) ofthe NPRM It is important to note, however, that
place) to be anequivalent facilitation, in proposed that each transportation one change does not make the entire
appropriate circumstances. facility, inorder tobe accessible to and facility accessible. Forexample, if
Equivalent facilitationwould be usablebypersons with disabilities, must tactile strips were installed along the
allowed inthose cases where an entity meet theguidelinesproposedby the station platform edges, these strips
candemonstrate that its alternative Architectural andTransportation would be considered accessible, evenif
method ofcompliance provides Barriers Compliance Board (Access they donot meetthe standardsbeing
comparable access andusability to Board), reprinted asAppendixB to part promulgated today, iftheymet one the
persons with disabilities. While the 37 in the proposedrule. UFAS orANSI standard cited above
Access Boardguidelines introduce the While the Departmentreceivedover when installed. However, the
concept o{equivalentfacilitation, the 150comments to this sectionand the installation oftactile strips doesnot
DOTregulation specifies the procedure standards themselves, the comments eliminate the entity's responsibilityto
forusing the alternative methodof were almostuniversally duplicative of make otherchanges to the facility to
compliance. Paragraph (b) sets this comments sent directly to theAccess make it accessible inotherways.
procedure out, explaining that Board. TheAccess Board is the Newparagraph (c) ofthis section
determinationswill be made on a case- appropriate entity to reviewthe clarifies a provisionofthe Access
by-case basis and that thepublic comments, since itis theirresponsibility Board's standards concerningthe
participationrequirementsgenerally undertheADA to define whatan construction ofbus stop pads.The final
requiredforthispartmustbe used to accessible facihtylooks like. All ofthe Access Board standard (foundat
determine the "equivalent" method of comments are discussed atlength in the § 10.2.1(1) ofAppendix A topart37) has
complying with the intent ofthe preamble to the Access Board's beenrewritten slightly to clearup
standard. document adopting theirguidelines as confusion about theperceivednecessary
Transitproviders requestedthat the final. construction ofa bus stoppad. Section
DOTrule make clear thatvehicles The Departmentdidreceive several 10.2.1(1) doesnotrequire thatanyone
purchased underaccessibility standards commentsrequestingclarification that a build a bus stop pad; it does specify
inexistence before these new facilitybuilt topreviously valid whata bus stoppad mustlooklike, ifit
requirements are still considered accessibility sta—ndards be is constructed.
bpafacrycceTievtlhsriiesatoniiufesbsisillntetay.lhpvarTratohulpilhieesadrvtmcrieaeoekqmbsueemifseeornrnecmtlmmeeoanwadtrdaisfest.ihcuaeatnctdhiienoorends to k"aesotcspgeacperyteeraiscasnosittdniaaofbltrralliseteyoqh.nwuiesiTnirlhraeltiecdhhsmc"eaeewsnvcostoeti,unhbttlailoedtnexmitwcbsa,hoyokimcfeJcoetuhnhdlsueyeripas2kdii6leeg,ryne1a9dt9e3d rmotuofulTsbdehtuoiessesxocst.elotraoTertphixcfpepoylainAadnticsgrncoleiltfashontsavghteueBpyraougahbterhladeiiv,cnecaotetsnnhhtesweitetDrailubOelcisTltaiistoyn
orderfora vehicle to be considered (with some extensions oftime DOT, recognizes that mostphysical
accessible to and usable byan available). improvements related to bus stops are
icsntodaminpvdliaydrudwasil.twAhittvhheehdiAicsclacbeeiltsihstaitBesod,aorietdsmnuosttmeet mthaaTkthietnhgaeyrthgseuhimroeusnlttdatonifootntshbeoercpocemenrmatelaniiztneeadrssfpoeircsts wPouahtrearogefrtaahpethrca(oncns)tirotofpl§roo3fv7i.td9heemretdrraoenelssyithnpaortvoeevsidtehra.t
these standards cannot, therefore, be oftheirstationsaccessible before the control over the construction, it must
regarded as "accessible." The Access
Boardguidelines themselves have taken effective date ofthis rule. The exercise that control toensure that the
Department agrees with this, and padmeets these specifications.
intoconsideration the concernabout the
specifies thatcertainwork done before One othercomment was submitted to
use ofvehicles meeting olderstandards
beingable to be used tomeet the "one the effective date ofthis rule will the Access Board concerningan
carper train" standard. continue to be considered accessible. implicationofthisprovision where there
3a8dFdaiepndaplhltcyoa,cbarloensest-owroepvfaeerrrae-gntcrheae-pprhoora(tcdi)obhnuassseosbfepeanrt odFneoTldnyeheretaiolngkrcAeaconycmdepsfsltasaititahbineioclrnisep,trywioifSvtttihhsaeintohdwneaorUardpnkspilwfoioarerssAmNSI Tpissuphleaelciibcnfuogisncucalpteoiraoondnniiwnbsgoottuhihlastdlsaitrndhedeeqswubiiourtfsehtpthbaheuedsiesislsalnadn.dto
subject to publicentity requirements by A117.1 (1980), American National be a minimum of84 inches wide (two
vrbbcpsiuieuoyrbnqsatlcauecuieishepcreAuwoesebufemnlgpertituinuechsttreytepcno"uhht2fsr6aait,tc§svayhee1.n3ad97dhsW9.0beah2i,ynd3dilwtoootehrerroeboolbhsveeneahecadrobasa-eeceuntcshdsohea"etedsli-sftrriheoboecflatedaly BHSaauduceatsnciraendelinddsdvUdisieasacindarbagFbldpsefelspdr.aeeeoSnrdFmpbdao,eyltr,cFhiiagteetfcrxwhiiMaieaclnelimatltPttphriilboyeooreesspn,iolsAcclocoiafifacnlotnaesrlasniyoMnsdraeienkmbrtlieoiedntnygetoy weWwoprtixhoahdciucetelltrheedisdacbsbepousepfimrlaooaotdsnaibetacnughspaaevapassapdti"rboldoopaafoabsupnclebaoheddlr)eutmo,o-ranwbwcliahoodnpwmieeipcsrldhppaitaatahcdineo"c.nea,l
previously defined what accessible Washington Compact to make changes would also be acceptable, consistent
means. Accordingly, this regulation to a building, it wouldhave had to with the conceptof"equivalent
specifies that an over-the-roadbus must complywith the UniformFederal facilitation."
have a liftwhich meets the performance Accessibility standards. Likewise, a Anewparagraph (e), parallel to
requirements ofa regularbus lift (see private entity, without benefit ofany § 37.7(b), has been added to provide a
§ 38.23) and meet the interim Federal money, mayhave complied with procedure forreviewingproposed
accessibility features specified for all the ANSI A117.1 standard in altering a equivalentfacilitationrequests in
otherover-the-road buses inpart38, facility. So long as the workwas done in transportation facilities.
subpart G. conformintywith the standard that was
45588 Federal Register / Vol. 56. No. 173 / Friday, September 6, 1991 / Rules and Regulations
Section37.11 Administrative This provision is based on the need tobe enforcedon a case-by-case
Enforcement definition ofthe term "operates" in basis, which typically involves some
There was little comment on this section221(4) ofthe ADA, which says difficult judgment calls, the Department
section, the substance ofwhich has not that the term believes itis valuable to retain "in
been changedfrom the NPRM. " * ' asusedwithrespecttoafixedroute contemplation of." This language plugs a
Section37.13 EffectiveDateforCertain sinycsltuedmesoropdeermatainodnroefsspuocnhsisvyesstyesmtbemy,a • psohtoeenst"iaplrolvoiospihoonlebiignetnheou"gshtatnods in the
VehicleLiftSpecifications personunderacontractualorother accommodate aninaccessible bus.
This sectionis new, and reflects arrangementorrelationshipwithapubhc In the absence ofthis provision, ifa
comments from transitproviders and entity. contractorwas aboutto sign a contract
bus manufacturers concerning the effect When section 222(b) ofthe Actprovides with a public entity, andwanted tobuy
ofAccess Board vehicle Hft that it is discrimination fora public inaccessible buses forservice underthe
specifications (e.g., relating to lift entity to purchase orlease an contract, the contractorcould arguably
platform size). Commenters were inaccessiblevehicle, for example, it do so, since the contractual relationship
concerned that, iflifts onb\i8es procured applies the accessible vehicle triggering the applicability ofthis
immediatelyafterthis rule went into acquisitionrequirement to private section didnot exist at the momentof
effecthad to meet these specifications, entities "operating" such a system, or solicitation.TheDepartment believes
there would be difficulties in meeting part ofone, under a contract forapublic such a result tobe inconsistentwith the
procurement requests in a timely entity. ADA, and the "in contemplation of
fashion. Forexample, some retooling or This understanding ofthe statutory language shouldhelp to preventit.
redesignmaybe necessary that could language was clearly contemplatedby The NPRM also proposed thata public
notbe accomplished without some Congress. entity couldnot diminish its percentage
delay. Forthisreason, the Department Withregardtotheoperationofasystem ofaccessible vehicles and service
has decidedtogrant a briefdelayin the providingpublictransportation, ifapublic through contracting out.That is, while a
effectiveness ofcertain lift entityhasenteredintoacontractualorother contractorcanuse existing inaccessible
Psssapetrecacttniiidfcoaiunrcldaawstri,iltoyhwngset,ihvdeuenonptiantlrohatJetarbinaenunltasieirertyvaece2tl6tii,hogain1tb9io9tlf2hi.tityshis aettbnhhryteeritatsshnyyaegsmteptoermeiomeavp,ncaetcttreehaosetrseeinprbtuetiiblhltlaeiyittcisfyooyernrsnesttshqeieiumtrpiy,vriwmoeciurmetsehaptnrtpaaoosspvrsraitiuridvreoeaendmteotefhtat vcpteouohbndilticirmlcaiecenstnietisdinhtwiyttishcteafhlnoeanveeotprtufabolarlllilsaceocrwecvnetitsihcstieiysb,isltiihtteuyatoifon
additional time forcompliance should underacontractual, orotherarrangementor its fleet. A substantial majority of
result in significantproblems for relationshipaswouldapplyifthepublic commenters, both transit providers and
pSausbspeanrgterBs—. Applicability eonfttihteyswyesrteemo,peirtsaetlif.ngH.thKeepsty.st1e0m1,^8or5,poPrtt.i1onat dpirsoavbiisliiotny.gTrwouopsc,ofmamveonrteedrisncolpupdoisngedthiit,s
Section37.21 Applicability—General 26.All but one commenterwho orenqeuiornetrheetrboafistitsintghaatnidt wthoeulotdheimrpolincitthley
Inorderto devote sufficient attention addressed this subject supported the basis that it would inhibit contracting
to a varietyofissues regarding the "stand in the shoes" concept (that out.'The lattercommenter also said it
applicability ofthe regulation, the commenterbelieves that over-the-road was unfairto require "no diminution" in
discussion ofapplicability takes up buses operatedby private contractors the case ofcontracting out butnot inthe
subpartBofthe finalregulation. The forpublic entities should not have to be case where a publicentity acquires
matters covered by this section are quite accessible, a position the Department inaccessible used buses.
ocubonvmcimhoeaunnst,g.eadnPadfrrwaoegmrrteahpenhosNtP(taRh)Mea.snudPbaj(rebac)gtarroaefph bs19et9la1it)eu.vteCeso—mtsomeeeben5t6ienFrcRosn1sf3ia8sv5ot9re-in6nt0g,w,iAotrphrnitolhte4, ocpotWmihpoilnlyeawprieuttbhrloitfchiitseonpftrisotvoyimcseoiouvnle,dhricechtloreoosfsiietsttioonngeis
(tch)athamsosbte,einfnaodtdealdl,ttoraunnsdpeorrltianteiothne fact odbijsaebcitliintgy,gtrootuhpiss aapnpdrobaocthh,piunblcilcudaendd naocqturiesqiutiiroend.ofAnnewentaictcyescsoiublldeabcucseelse.rate
pctwciroootonvlrevsekiirIedIsedetodrercsnbltcycioytsolDeevaOlemIyJIroIewnrodiegftgbhtuoyhluteaprhtaeAirrDoeDtngAOsu3.Jl7eaiWtattiloehoseenorsnha.sauruvnerdeeer ppgsctrrroaioomtvvuumaiptetseseni,otatinesrtarkiinsesssdisbrtoeefioppcnrrrlgoeemvsaroireerdlnteyetariicssnna.tgelrdSlid.einidngsAaecfbneofitreltiwhbteyythe (anthScoeictnenbcseeseiwanblellaeecndcveeeewsdhsiicbinlbuelsmse,aobnraudycsecerecsslaesmcerousams,titibonebngcemianfauotsyroea
However, should any apparent requirements (e.g., that all buses, new or fplreoetcuirnetmheenntomramaylbceousurfsfeicoifent to
i37ncwoonsuilsdtecnocnytrcorlowpiutph rinestpheectfuttoure, part epxuibsltiicnge,ntpirtoyvsiedrevdicbeysabecoanctcreascstibolref)o.r maintain or improve the accessible
tserravniscpeosr.tation vehicle, facilities, or TwhoeulDdepeaxrctemeedntthebesltiaetvuetsortyhiastatpapchrmoeancth vceohnitcrlaectroartico.o)ulAdltperronavtiidveelsyo,mae
ofaccessibility requirements to accessible buses.
Section37.23 Service UnderContract situations involving a "purchase or Neitherare we persuaded that this
This section embodies the "stand in lease." provision would inhibit privatization.
the shoes" concept discussed at length This provision applies not only to the Before the ADA, no one was requiredby
in the Department's October4 final rule acquisition ofvehicles under contract, Federal law to acquire accessible
and the NPRM. Briefly, it provides that but also in contemplation ofuse under vehicles; now, everyone's acquisitions
when a public entity contracts with a contract, to a public entity. The "in must be accessible. In this climate, it is
private entity to provide transportation contemplation of language was difficult to support a conclusion that
service, the private entity mustplay by opposed by a few transit providers and maintaining existing ratios ofaccessible
the public entity's rules with respect to generally was endorsed by disability buses will have any significant impact
vehicle acquisition and transportation group commenters. While it is clearfrom on the attractiveness ofprivatization.
service issues. the comments that this provision would Much more significant economic and
Federal Register / Vol. 56. No. 173 / Friday. September 6. 1991 / Rules and Regulations 45589
politicalforces will drive privatization service shouldnotbe rewardedat the engagedin the business oftransporting
decisions. expenseofthe transitneeds of people contractstoprovide service to a
The situationofa publicentity individualswith disabilities inthe private firmnotso engaged, thenthe
acquiringinaccessible usedvehicles is affected cities. rulesgoverningthe latterwouldapply to
distinguishable from the contractingout AccordingtoUMTAstaffand contractor, withrespectto the
situation. Before a public entitymay commenters, the Charlestonand contracted service.TheDepartment
acquire inaccessible usedbuses, it must Columbia operations are typical agreeswith this suggestion, whichwill
engage in a thorough, nationwide,good, examples ofurbanfixedroutebus help toclarify the obligationsofprivate
faith effort to find accessible used service forthe generalpublic. They providers ina way consistentwith other
vehicles. There is a reasonable receive UMTA assistanceunder parts ofthe statute. Wehave addeda
possibility that this searchwill enable it sections 3 and/or9forsimilarptuposes, paragraph to this effect.
to findat least some accessible used andin similaramounts, as anyother
vraethiioclceas,nwbietmhawihntiacihneitds.aMcocersesoivbeilri,ty fciitxieedsroofustiemimlaasrssitzrea.nsTihtepyroovpiedrearteinat STercatnisopnor3t7a.t2i5onUSnyisvteermsisty
since mostpublic entities are UMTA- defecits as do mostfixedroute transit The NPRMproposed to coverpublic
UMTA
assisted, oversight ofthe operators. university-operated transportation
acquisitionprocess can help to address UMTAfunding does notflowdirectly systems underthe requirements for
UMTA
situations (whichare not that likely to to the utility. Rather, provides public entities. All butthree ofthe
occurin any event) inwhichlarge section3 and/or9 assistance to a nearly30comments onthis subject
purchases orleases ofinaccessible designatedrecipient (a metropolitan agreed, includingseveralcomments
vehicles would depress a recipient's plarmingorganization [MPO] in fromuniversities aswell asfrom
accessibility ratio. Columbia, and to the citygovernmentof disabilitygroups.Two comments
TheAdvisory Committee discussed a Charleston), whichhas anagreement opposedtheproposal, principallyonthe
situation inwhicha new transit with theutility through whichthe ground that such systems donot serve
authority, whichnowhas novehicles, UMTA assistance is made available to the entire "generalpublic." One ofthe
wcioutlhdthceonptorsascitbloeutreasllulittstihnaittitahlesreervwiocuel,d twhheeuntilaitpyu.bUlincdeenrtitthiys(sliekcetiaonnMofPtOheorrulae, coromotmheenrtasutnhootrietdietsh,atc,aumnpduesressecatrieon504
be no accessible serviceprovided.The city) enters into a contractual orother becomingmore accessible, making
"no diminution" language wouldnot arrangementorrelationshipwith a coverage underthis rulelessnecessary.
help the situation, and some committee private entity to operate fixedroute or The commentersuggested thatitwould
members favoredlanguage thatwould demandresponsive service, the public be closerto themark to coverpublic
mandate aminimumlevel ofaccessible entitymustensure thatthe private entity universities underthe same private
service in this situation.TheDepartment meets the requirements thatwould entityrequirements applicable toprivate
does notbelieve this to be needed. Ifa apply to the public entity ifthe public universities.
pwuobullidc ehnatvietyawveerreytsoigtnaikfeictahnits tack, it entAistydietsscelrfiobpederaabtoevde,thtehseeursviucael. It is useful at thispointto review the
rationale forcoveringpublicuniversity-
paratransitobligation (e.g., virtually all situation inwhich this "stand in the operated systems under the public entity
persons withdisabilities wouldbe shoes" principle applies is the case ofa requirements ofthe rule.The question
eligible).The Department, inreviewing pubKc transit authority contracting out about coverage arises from theway
the entity'sparatransitplan, would part ofits service to a private certain ofthe ADA's definitionsmaybe
probably insist, due to the lack of transportation company. In the read together. Forexample, the
accessible fixed route service, that Department's construction, the language requirements ofsections 222and223 of
Tpahreaternatnistiytwsoeurlvidceprboebapbhlaysefidndinitquliecsksly. otfyptihcealse"cctoinotnraecntciongmpoaust"sessitnuoattioonnlbyuta tohpeerAatDiAngaappfliyxetdoraou"tpeubslyiscteemn.ti"tyA
ehsexarpdveinscseo.imveeaacncdesesaisbileerbtuoseenssiunreitsthiantitiital ac"alassreor,aatnshgieetrmueeantisitoanonrolitrkeheleartthikisoinnosdnheio.pf"Inbethtiwseen penutbiltiyc.uMnainveyrsciatympisusclbeaurslysyasptuebmlsicfit the
The Department received a number of a private andpublic entityinwhichthe operationalrequirements ofthe section
comments about a situation in South private entityprovides fixedroute bus 221's definitionofa fixed route system.
Carolina in which urbanmass service, serving the public ofan urban That is, the buses operate alonga
transportation services are providedby area, that a public entity would prescribed route according to afixed
a private utility. As the Department otherwise provide, receivingviaa public schedule.
understands the situation, theutility is entity the UMTA assistancewhich is However, the definitionof"fixed
requiredby law and/orfranchise intended forpublic transportation route system" also refers to providing
condition to provide transit services in service ofthis verykind. "designated public transportation." This
Columbia and Charleston. The Department concludes, then, that termis defined, in turn, as
One ofthe comments, from a member in this South Carolina situation the transportationprovided to "thegeneral
ofthe South Carolina Congressional utility is subject to the requirements that public." The commenters opposed to
delegation, citing the unprofitability of would apply to a public entityproviding coverage contend, in effect, that a
the utility's existing bus service and the the same kind ofservice and receiving campus bus system primarily intended
difficulty the utilitywouldhave in the same UMTAfunds.These to transport students, faculty and staffis
providingparatransit service, suggested requirements include complementary notintended to provide transportation
that only private entityrequirements paratransit as well as the acquisitionof to "the generalpublic," consequently
should apply to the utility. Comments accessible vehicles. does not involve "designatedpublic
from disability groups disagreed, saying Afew commenters and committee transportation," consequently isnot a
that the utility provided the only mass members also suggested applying the "fixed route system," and therefore is
transit service in the area and thatwhat "stand inyour shoes" concept toprivate not subject to the accessible vehicle
the commenters viewed as the utility's contracts with otherprivate entities. acquisition and complementary
poorrecord ofprovidingmass transit That is, ifa private firmprimarily paratransitrequirements ofsections 222
45590 Federal Register / Vol. 56. No. 173 / Friday, September 6, 1991 / Rules and Regulations
and223.The same argument would oforigins and destinations, andhave This section also restates the point
apply to demandresponsive service limitedfunctions. One oftheirprimary thatprivate university-operated
provided by a public university orother fvmctions is to interface withfringe transportation systems are subject to the
publicinstitution, since the definition of parking lots and/or city transit systems provisions forprivate entitiesnot
"demand responsive system" also that carry people to the vicinity of, but primarily engaged inthe business of
includes a reference to "designated notdirectly to, majorcampus transportingpeople.
public transportation." destinations. Section37.27 Transportationfor
While the Departmentunderstands Moreover, like commuterbus systems, ElementaryandSecondaryEducation
the basis for this argument, we do not campus shuttles are a kind ofservice Systems
construe the application ofthe statute in which does not fit the urbanmass
this way.The same argumentwould transportationmodel ofcomplementary There was no counterpart tothis
apply, perhaps withgreaterforce, to paratransit comfortably. Given the sectionin the NPRM, butwe have
transportationby public schools. Yet composition ofuniversity communities, included it for clarity. "Public school
Congress specifically exempted "public the likelihood ofsignificantnumbers of transportation" is explicidy excluded
school transportation" from the individuals ineligibility categories one from the definition of"designatedpublic
definition of"designatedpublic and three is low.The publicpolicy transportation." In addition, this section
transportation." From this we draw the reasons for complementaryparatransit provides thatifa private schoolgets
inference that, in the absence ofthis in otherfixed route settings have agood Federal financial assistance, is covered
exemption, public school transportation deal less force here.The costs of by section 504, andprovides equivalent
wouldhave been covered underthe planningandimplementing a transportation service to studentswith
"designatedpublic transportation" complementaryparatransit system at a disabilities, it too is exempt. [SeeH.
definition. Congress couldhave, but did universityis less likely to be balanced Rept. 101-485, Ft. 1, at36) Evenifa
not, make a similarexemptionfor byproviding significant amounts of private school is not exemptunderthe
transportationprovidedbypublic needed service than in a more typical section's criteria, it is subjectonly to the
universities orotherpublicinstitutions. urbanmass transitcontext. requirements forprivate entities not
This argues strongly thatno such The plarming apparatus commonly primarily engagedin transporting
exemptionwas intended. assumed to be involved with urban people.
coTnitdeempIlIaotfetohnelAyDtwAoakpipnedasrsofto mfoausnsdtirnanssuicthsyassteetmtisngi.s nAostalirkeesluyltt,otbhee Section37.29 PrivateProvidersofTaxi
transportationprovidedbypublic planningrequirements ofsubpartF do Service
entities: Fixedroute and demand notfit the campus contextwell, making There was no counterpart to this
responsive service. Nowhere does the it likelythat compliance with the— provision in the NPRM, but a few
Act suggest that—there is intended to be planning requirements wouldbe both comments asked forclarification on taxi
a"ntohniredocfattheegoarbyovew"h—icfhremeifgrhotmbeallcalled fionrvotlhvee1d5a0n0d+fionrstUiMtuTtiAon—s tahpatapceoruldbe stearxviifclee.etOsnsehoiuslsduehcaovnecteorniendclwuhdeetshoemre
accessibilityrequirements. Indeed, exercise oflimitedvalue. accessible vehicles. Underthe ADA,
inferringCongressional intent to create Requiring complementary paratransit private entities primarily engaged in the
such a categorywould appearsharply ofpublicuniversities would also create business oftransporting people and
contrary to the overall objectives ofthe anunjustified distinctionbetween providing demandresponsive service
staWtuete.would also point out that campus psuhboluilcdabnedspirmiivlaatrleyusniivteurastietdieisn,twehrimcshof r(tehqeuicraetdegtoorbyutyhaatccienscsliubdleesatuatxiosm)obairleenso.t
shuttles typically serve what can fairly meeting the transportation needs of Such entities are required to purchase
be thought ofas thegeneral public ofthe members oftheiruniversity accessible vans, unless the entity can
utrnainvseirtsistyystceommmsuenrivtiyng.tWhheielnetinroet a mass crooumtmeunsietrviiecse.,Itfhtehyehlaavtteertoopaecrqautierefixed demonstrate that itprovides equivalent
community ofAnnArbororMadison, accessible vehicles or (withrespect to rseerqvuiicree.sBauntennottihtiyntgoiancqthueirsetaatuvtaen; ifa
the University ofMichigan orUniversity vehicles with a capacity of16persons or taxi company acquires only
osifgWniifsiccoanntsisnubbsuestsoyfsttheemcsoemrmvuensitthyethat Tlehses)yddeomonnostthraavteeteoqupirvoavliednetpsaerravtircaen.sit. automobiles, it needneverobtain an
accessible vehicle.
itrforouatvneeerssayecssctetephtmesmutnuhisevtearsrseigrtuvymeec"nattmhpetuhgsaeetnsea.rfaEilvxeedn IirnemaptslhoeenmaDebenlpteaa,rttiamonendntomf'ostrheveicesowtna,stiutstheteeinstmwoirteh nevAerdtihsealbeislsi,tyagrtaoxuipccoommpmaennyteisdntohtat,
public," it is reasonable to conclude that Congressional intent, ifwe regard public accessible when viewed inits entirety if
acotvyepriecadlbuynitvietlresiIIt.ySbuucshsaynstem is ucnoimvmerustietry fseirxveidcer.ouTtheissewrivlilcereassult in ivtedhiocelsesno(teihtahevreiancictessoswtno aflceceetssorible
interpretation is also consistent with congruent requirements forpublic and through arrangements withother
long-standing UMTA interpretation of private institutions ofhighereducation. entities).Therefore, the commentersaid,
TsirmainlsaprortteartmisounnAdcetr.the UrbanMass stuOdneentinotwenreesdtiangndcoompemreantteddetsracnrsiibted a sshuocuhladcbceesrseqtuoiarcecde.sWsieblreevceohgincilzeesthat
Having determined that public system serving one state university, and the availability ofaccessible taxi
universities are subject to public entity expressed concern that applying public service is important to individuals with
requirements, we turn to the question of entity requirements to it could make disabilities, and believe that, as a matter
the nature ofthat coverage. The operational costs prohibitive. The ofpolicy, greateraccessibility oftaxi
Department will deem such systems to information in the comment was not fleets shouldbe encouraged. Given the
be commuterbus systems. Like other sufficient to determine how under the absence ofspecific statutory language
commuterbus systems, university fixed regulation this system wouldbe requiring a mix ofaccessible vehicles in
route systems generally have limited, categorized. This and other unusual taxi fleets, we believe that to impose
rather than comprehensive, route situations are best addressed on a case- such a requirementbased only on a
structures. They serve a limited number by-case basis. general concept of"accessible in its
—
Federal Register / Vol. 56, No. 173 / Friday. September 6. 1991 / Rules and Regulations 4559i
entirety" wouldbe inappropriate. meaning that it must acquire accessible real nature ofairport transportation
Consequently, we have decided not to vehicles unless it can demonstrate that services, is to categorize airport shuttle
adopt this suggested requirement. itprovides equivalent service to orconnector services as fixedroute
A taxi association commented that, passengers with disabilities. commuterbus service. As discussed in
forpurposes ofdetermining whether a The demonstration ofequivalencycan the preamble section on the definition of
taxi company was providing equivalent be made ifaccessible vehicles are made "commuterbus," service like airport
service, equivalency standards should available forvanpools ofwhich a shuttle and connector service shares
be adjustedfordifferentkinds of memberis an individual (ormembership several important characteristics with
vehicles. The commentersuggested that is sought by an individual) with a commuterbus service, while being quite
vans may respond to calls less quickly disability. This is a system that public different in its operating characteristics
than automobile taxis, forexample. It is vanpool commenters say that, in effect, from urban mass transit bus service.The
We
not at all clearthat this premise is theyuse. are notrequiring that result ofthis categorization is that
correct: Vans appearto get around just public vanpool systems acquire a airport systems will have to acquire
as quickly as othervehicles. In any certain percentage ofaccessible accessible vehicles but will not have to
event, adjusting equivalency standards vehicles, only that theymeet provide complementary paratransit.
fordifferent kinds ofvehicles seems accessibilityneeds as they occur. Anotherform oftransportation found
extremely difficult to do in a rational Private vanpools are not covered. This atmany airports is private shuttle or
way, so we will not attempt it. decisionis responsive to the legislative jitney service which serves a variety of
Section37.31 Vanpools history concerningvolunteer-driven locations inthemetropolitan area
ridesharing arrangements. served bythe airport, typically in a
In the NPRM, the Department offered Section37.33 Airport Transportation route deviation orothervariable mode.
its preliminary view thatpublic Systems TheDepartmentbelieves that these
vdaenmpaonodlsresshpoounlsdibvee ssuybsjteecmtrtoeqtuhierements The NPRM preamble asked how the soeprevriacteesdairneabedsetmcahnadrarcetseprioznesdivaesmode
forpublic entities, while private Department should regard by private entities primarily engaged in
vanpools would be subject to title III transportation systems operated by the business oftransportingpeople. As
requirements. The preamble noted the public airports. Public airports are such, these operators must either
legislative history statements to the clearly public entities; to the extent that acquire accessible vehicles orprovide
effect thatvolunteer-driven commuter theirtransportation systems (e.g., equivalent service. In response to
ridership arrangements were not shuttles from fringe parkinglots, discussion at the Advisory Committee
intended to be covered under title III. connectorservice to the metropolitan meetings, the rule points out that
There were a variety ofcomments on areas they serve) are fixedroute, and
vanpool issues. Some commenters the accessible vehicle acquisition and eopqeuriavtaolresncmyaryeqbueimreemtenbtysafgorrosuupchofsuch
thoughtvanpools should be complementary paratransit obligations
characterized as demandresponsive, oftitle II would seem to apply. Yet the parcicveastseibolpeervaethiocrlsewshaomosnhagrethoermpoinola
oatshfeirxsedthroouugthe,tathnedyosthhoeurlsdwboeulrdegarded resepleecviaanlcleyopfartahtersaensrietq—uisreeememnsts way that ensures the provision of
describe them as ahybrid category. A questionable in the airport context. equivalent service.
numberofcommenters"emphasized that, Airport commenters noted that they Some airports or airlines also may
given the economics ofride sharing, it typically made close-inparking spaces operate otherkinds oftransportation
wouldnot take much ofanincrease in available topassengers with disabilities systems, such as the electric carts that
the price ofa van ora decrease in the at fringe lot prices, making accessible are available to assist passengers in
van's seatingcapacity to make transportation to fringe lots moving through concourses and mobile
vanpooling economically unattractive to unnecessary. They asked that this lounges that take passengers from a
participants. Some publicvanpool solution be approved in the final rule. terminal to anaircraft oranother
operators mentioned that they already An airport operatorwhich operates a terminal. Like all services to the public,
ADA
acquire a small percentage (e.g., 5 connector service between its airports these systems are subject to
percent, forone system) ofaccessible and to the metropolitan area described requirements. However, the Department
vans foruse by individuals with at length the problems that did not raise issues about such systems
disabilities. complementary paratransitcould cause. in the NPRM and received no comment
Those who commented that vanpools Disability communitycommenters, on about them. Norare they specifically
did not fitneatly eitherofthe statutory the otherhand, said that there never covered in the Access Boardguidelines.
categories seem closest to the truth. On seemed to be enough vacant close-in It would therefore be inappropriate to
onehand, a vanpool system serves a parking spaces, that there were often issue final rules on these systems, which
limitednumberofpeople, all ofwhom barriers between the close-in lot and the may present somewhat different
request to be part ofthe service. The terminal, and that this solution did not accessibility problems than othermodes
routes may change overtime in response address some individuals with oftransportation. The Department
topeople joining orleaving a particular disabilities who come to airports (e.g., intends to address these systems in
vanpool.The driveris a fellow persons with disabilities who arrive in a forthcoming amendments to its Air
commuter, not an employee ofa non-disabled friend's car, which does CarrierAccessAct and section 504
separate public orprivate entity. On the not have the properlicense plate to park rules.
goetthearrhiadnedo,nnaopoanretihcauslatrodmaya,keanadctahlleto ipnoiant"ehdantdoitchaeplpaendgusapagcee"o)f.thTeheAyDaAlso SOetchteironTr3a7n.s3p5ortSautpipolneMmeondteaslServicefor
van usually follows a given route of which categorically requires certain
pickup and dropoffpoints which it things offixed route systems operated This section responds to comments on
attempts to meet at specific times. On by public entities. a variety ofsubjects. A disability
balance, the Department believes that it The Department has concluded that commentermentioned that the rule
is more reasonable to treat such a the most reasonable solution, and the should specify coverage forbus service
system as a demand-responsive system. one that most accurately reflects the which intercity rail operators may
—
45592 Federal Register / Vol. 56, No. 173 / Friday, September 6, 1991 / Rules and Regulations
provide from a station to a nearby city. regulated by a publicentity, is notfor provided by the entities inquestion.
A commuterrail operatorsaid thatits thatreasonregulatedunderTitle II. This does not mean that these
dedicatedbus service to the rail system Public accommodations subject to the conveyances escape ADAregulation;
(limited torail users, with through DOJ Title III regulations (e.g., hotels, car DOJ regulations undertitle II or title III
ticketing) should be regarded as a rental agencies, historical or theme ofthe ADAcover them.
commuterbus system. Other parks) are the classic examples of Transportation services offered by
commenters mentioned situations in private entities not primarily engaged in employers (e.g.. motorpool vehicles,
which entities such as cruise ship the business oftransportingpeople. employer-sponsored van pools or shuttle
operators provide a shuttle or connector They do, inmanyinstances, provide services which are limited to employees)
service (e.g., between anairport and a shuttles and othertransportation are anothercategory this section
dock). services to people. The only question to clarifies. Such employee transportation
For the same set ofreasons cited in consideris whetherthese systems are is not part ofa public accommodation or
the discussions ofthe definition of demand responsive orfixed route. designated or specifiedpublic
csyosmtmeumts,erwebuhsaavneddaeitrepromrtinterdantshpaotrtitatision issTuheewoenrleyfcroommmtewnotsmatjoofroccuasrorenntthails ttrhaensscpoorpteatoifons.ecIttidonoses22n2o,t2c24o,m3e02wiotrhi3n04
reasonable to categorize the systems run organizations. They arguedthat the ofthe ADA. Itwould, however, be
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not primarilyengaged inthe business of equivalent ofa user-initiated request for One commenterasked that the rule
transportingpeople. shuttle service and on factual assertions
specificallymention that the
Section37.37 OtherApplications that the companies in question do not in transportation provisions ofthe ADA do
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otherone covered underthe "stand in commenters, disabilitygroup The Department also was askedfor
the shoes" provision of § 37.23. For representatives questioned the accuracy clarificationofsituations inwhich a
instance, a private bus companymayget ofthese assertions, based on their parent company is notprimarily
an operating subsidy from a state, a experience as customers. engaged in the business oftransporting,
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services are often regulatedby state and As the two commenters themselves requirements apply?The Department
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generallyurged that, particularly in the Departmenthas notmade an actually providing the transportation
case ofsubsidies, these entities be independentinvestigation ofthe facts even ifthis entity is a smallerpart or
subject topublic entityrules. Without concerning the variety ofshuttles subsidiary ofa largerorganization.
the subsidies, the comments reasoned, operatedby carrental agencies orother When there is not actually a separate
the servicewould notbe economicalto public accommodations. The issue is subsidiary company involved, a
provide, so the existence ofthe service likely to be affected bymany site- "primarily engaged" segment ofthe
becomes, to a large extent, a public specific circumstances. It isnot clear largercompany that is operationally
creature. Comments fromprivate that, as ageneralmatter, a call to distinct from the rest ofthe company is
transportationproviders took the reserve a rental carcan fairly be relevantforthis purpose.
opposite tack, saying thatreceipt ofa equated to a call reservingvan The ADA defines intercity rail as
subsidy didnot transmute a private transportation. The finalrule recognizes service provided by Amtrak. There may
entityinto apublic entity and that theneed forcase-by-case be presentorfuture rail systems which
application ofpublic entity requirements determinations, andprovides that provide service having all the
(especiallycomplementary paratransit) demand-response orfixed routes rules, characteristics ofintercityservice
wouldlead to the abandonment of as appropriate, applying each case. The exceptOperation byAmtrak. For
service. possibility ofvariety in specific example, planning is nowunderway for
In theDepartment'sview, the statute operational circumstances is toogreat to a numberofhigh-speed rail systems. In
requires that (aside from the "stand in allowfuran across-the-boardrule. addition, DOTis aware ofa private
the shoes" situation of § 37.23) we look Anothersituation aboutwhich a few intercity rail service which attaches
to thenature ofthe entity itself, not to commenters inquired concerns private rail cars to Amtrak trains on
its relationship with otherentities, to conveyances people ride, not so much as some routes. Otherprivate intercityrail
determine theproperprovisions to a means ofgetting from PointA toPoint services couldbe created in the future.
apply. The statute itselfdefines a public B, but as a recreational activity orclose High-speed rail service, as it is
entity. Something that is a private entity, adjunct to a rec/eational activity. envisioned, shares so manyoperating
and hence does not come within the Amusement park rides, ski lifts, and characteristics with intercity rail service
public entity definition, cannot historic trolley orrail cars operated in that we believe it is sensible to apply
appropriatelybe categorized as a public museum settings are examples ofsuch intercity rail requirements to it. Forhigh-
entityunderthe rule. Consequently, this conveyances. In ourview, it makes speed rail systems operated by public
section provides that a private entity sense to regard these conveyances not entities, the rule would apply intercity
thatreceives a state orlocal subsidy or as "transportation" at all, but simply as rail requirements to such systems. For
a franchise from a public entity, oris one part ofpublic accommodations private rail systems, § 37.107governs