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DEPARTMENT OF TRANSPORTATION
49 CFR Part 37
[Docket OST-98-3648]
RIN 2105-ACOO
Transportation for Individuals with Disabilities
AGENCY: Department of Transportation, Office of the Secretary
ACTION: Final rule; request for comments
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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 [insert date 30 days from the date of publication in the Federal Register]. Comments on the information collection provisions of §37.213 are requested on or before [insert 90 days from date of publication], 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), bob.ashby@ost.dot.gov (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" (§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 Peņa, 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 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 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 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. 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 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 aauthorized 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 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 §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 §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 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.
Final Rule on Over-the-Road Buses
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