(The following document is the third and last part of the final rule on Transportation for Individuals with Disabilities
dealing with Over-the-Road buses. It is being provided in three sections to make downloading easier.
Links to the previous sections are provided at the end of each section.)

Other Issues

a. Interlining

Disability community commenters raised the issue of interlining. When a passenger buys a ticket or makes a reservation through one carrier for service that involves transfer to another carrier’s bus, commenters said, the carrier should have to ensure that accessible transportation is provided for the entire trip, so no one is stranded at a transfer point. While not speaking of this issue directly, some bus industry comments did allude to their "service-based approach" being able to handle this matter.

To provide clarity concerning interlining, the Department has added a section giving the carrier making the arrangements for the interline trip the responsibility for communicating to other carriers involved about the need for accessible service. Each carrier would be responsible for actually providing the service for which it is responsible, however.

b. Interim Service

There were few comments concerning the interim service provisions of the NPRM. Bus companies said they could comply, since the interim provisions were similar to the service-based approach they support. Disability community commenters said that the provisions were acceptable on an interim basis, since full fixed-route accessibility would be required later. While there were few comments that directly pertained to the time frames for providing interim service, carrier comments emphasized the readiness of the carriers to provide "service-based" transportation in the near future. Given that there are two or three years between now and the application dates of the rule it is reasonable to conclude that an additional two years is not necessary for carriers to provide interim service in accessible buses. In addition, retaining the two-year delay would mean that, for passengers of most of the operators who are small entities, it would be five years before they could count on receiving accessible service. Consequently, the final rule reduces the proposed phase-in period in half and calls on fixed-route carriers to begin 48-hour advance notice interim service in October 2001 or 2002.

c. Training and Maintenance

Disability community comments emphasized the importance of training of personnel and maintenance of accessible features. There were few comments on these subjects from bus industry commenters. Training and maintenance requirements were proposed in the NPRM. The final rule clarifies the content of the training requirements and specifies the lift maintenance requirement, which is similar to that for other modes.

d. Discriminatory Actions

Disability community commenters suggested that certain alleged practices of the bus industry under the current interim regulations should be proscribed (e.g., using traveling companions or paramedics to assist passengers’ boarding, without the passengers’ consent; unjustified denials of service). We have added a provision enumerating several prohibited practices. We would note that most of the occasions for the problems to which this section refers should be much reduced when the interim service and ultimate accessibility requirements of the new rule are implemented, since accessible vehicles will be used for virtually all trips for passengers with disabilities beginning October 2001/2002.

e. Additional Passengers Using Wheelchairs

In addition, in response to some comments from both disability community and bus industry parties, we have specified that, if there are more wheelchair user passengers than securement locations on a given bus, "extra" passengers would be given the opportunity to receive boarding assistance with a transfer to a vehicle seat. If the passenger declined this offer, the bus company would not have to provide transportation to the passenger on that run.

f. Technical Accessibility Standards

Bus manufacturers and some industry commenters provided technical comments on the proposed bus accessibility standards proposed jointly by DOT and the Access Board. The Department is in agreement with the responses to the Access Board to these comments in its rulemaking document (e.g., with respect to door height and lighting issues), also published today, and we are adopting the Access Board’s guidelines as an amendment to 49 CFR part 38. These standards determine what an accessible OTRB looks like for purposes of subpart H of part 37.

g. Definition of an OTRB

A few bus industry commenters expressed the concern that companies might seek to avoid requirements by acquiring buses that did not fit the statutory and regulatory definition of an OTRB. If any company actually contemplates such a tactic as a means of avoiding ADA accessibility requirements, it would not achieve its objective. A bus that does not fit the definition of an OTRB is simply a vehicle subject to the normal accessibility requirements of Title III of the ADA and part 37. Such a bus would not benefit from the special provisions applicable to OTRBs. For example, a fixed-route provider buying a new non-OTRB would have to buy an accessible bus. A demand-responsive provider buying a new non-OTRB would have to buy an accessible bus or provide equivalent service.

Section-by-Section Analysis

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

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

§37.183 Purchase or lease of new OTRBs by operators of fixed-route systems. Beginning October 2000, buses purchased or leased by large fixed-route providers must be accessible. An accessible bus is one that meets Access Board/DOT standards (i.e., in 49 CFR Part 38). This requirement applies to buses delivered after that date, even if they were ordered earlier.

Small fixed-route providers must comply with the same requirement beginning October 2001. However, instead of complying with this requirement, a small fixed-route operator can choose to provide equivalent service to passengers with disabilities, in a vehicle (it may be an alternative vehicle) that permits a wheelchair user to ride in his or her own mobility aid. Equivalent service is defined by §37.105. Essentially, equivalent service is service that in terms of time, destination, cost, service availability etc. is parallel to that provided non-disabled passengers. Fixed-route operators are not required to purchase accessible used buses. Retrofitting existing buses for accessibility is not required.

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

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

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

§37.189 Service requirement for OTRB demand-responsive systems. Beginning October 2001 for large entities, and October 2002 for small entities, demand-responsive operators must provide an accessible bus to any passenger who requests it 48 hours in advance. There is no requirement on demand-responsive operators to acquire their own accessible buses and no fleet accessibility requirement. Rather, when a timely request is made, the operator must find a bus and get it to the location where it is needed. Even if the request is made closer to the time of travel than 48 hours, the operator must make a reasonable effort to locate an accessible bus and provide it to the passenger.

The rule notes that an operator need not fundamentally alter its reservation policies or displace other passengers to comply with this requirement. The examples in the rule text illustrate how this principle works.

§37.191 Special provision for small mixed-service operators. This provision applies only to a subset of small operators. If a small operator uses 25 percent or less of its buses for fixed-route service, with the rest being used in demand-responsive service, it can provide 48-hour advance reservation service for everything it does, fixed-route as well as demand-responsive. It would not have to obtain accessible buses of its own, beyond the extent necessary to successfully provide advance notice service. This exception to the normal rule that advance notice service is not permitted for fixed-route service is placed in the rule in recognition of the special situation of such small mixed-service operators. Use of this provision by small mixed-service operators is optional. Their fixed-route service can also comply with this subpart by acquiring accessible buses or providing equivalent service, as provided in §37.183(b).

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

§37.195 Purchase or lease of OTRBs by private entities not primarily in the business of transporting people. This section states, for clarity, the "private not-primariles" are subject to the same rules as "private primarilies" for OTRB accessibility purposes. The NPRM stated somewhat different requirements for the two categories, and there were no comments on the subject, but for the final rule it made more sense to make the requirements parallel.

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

§37.199 Compensation for failure to provide required vehicles or service. This is an accountability mechanism for advance notice and equivalent service. If an operator fails to provide the required service, then the operator must pay compensation to the passenger. This is not a civil penalty paid to the Department, but a sum sent directly to the passenger whose travel plans were disrupted. No administrative procedure is needed. For example, a passenger requests an accessible bus on Monday for a trip taking place Thursday. On Thursday, is the accessible bus at the appointed place and does its accessibility equipment operate to allow the passenger to complete his or her trip successfully? If yes, then there is no problem. If no, then the operator pays the compensation to the passenger within seven days.

The reason for the failure doesn’t matter. If the operator forgot to obtain an accessible bus, or if the operator made a good faith effort and couldn’t find one, or if the operator found a bus but the lift is broken, the result is the same. Compensation must be paid. Only in rare situations in which no one receives transportation, for reasons beyond the operator’s control (e.g., a blizzard shuts down the East Coast, and nothing moves for two days; an accessible bus is on the way to make a timely pickup of passengers, is involved in a crash, and never makes it to the pickup point), would the operator be excused from paying compensation.

The compensation scheme is graduated. The amount of compensation increases with each failure to provide transportation. For occasion 1 with passenger A, the company pays $300. For occasion 2 with passenger B, the company pays $400, on up to $700 for the fifth and subsequent such incidents in the company’s history. To help prevent the payment of compensation being regarded as simply a cost of doing business in lieu of compliance, the rule notes that payment of compensation does not immunize operators from ADA enforcement actions (e.g., litigation by the Department of Justice).

We also note that refunds of fares paid by passengers with disabilities for trips not taken as a result of an occurrence triggering the compensation requirement do not reduce the compensation requirement for carriers. For example, suppose a passenger has paid $50 in advance for a ticket, cannot travel because the operator fails to provide an accessible bus in a timely manner, and receives a $50 refund from the operator. If the operator was responsible for paying $300 compensation in this situation, the amount of compensation would still be $300, not $250.

§37.201 Intemediate and rest stops. Whenever any OTRB makes an intermediate or rest stop, at which passengers have the opportunity to get off the bus and use the facilities that are available, passengers with disabilities must have the opportunity to use the rest stop facilities. In the case of an accessible bus, this means operating the lift mechanism to allow a wheelchair user to get off and back on the bus. Under the final rule, there should be few if any situations in which a passenger is traveling in an inaccecssible bus, such that other means of boarding assistance are necessary. (There could be situations in which boarding assistance is needed for a passenger who has transferred to a vehicle seat because securement locations are filled with other passengers.) In any case, the bus company is responsible for providing whatever equipment and personnel are needed to complete these tasks and taking the time necessary to do so.

When a bus is making a lengthy express run (i.e., three hours or more without a stop) and is equipped with an inaccessible restroom, ambulatory passengers can go the bathroom but many passengers with disabilities cannot. In this situation, if such a passenger with a disability makes a request for an unscheduled rest stop (whether at the beginning of the trip or during the trip), the bus operator must make a good faith effort to accommodate the request. Because an unscheduled rest stop can potentially disrupt schedules and connections, however, the rule does not require the bus company to make the unscheduled rest stop. This decision is discretionary with the bus company. In a situation where making the unscheduled rest stop would not unduly disrupt schedules or connections, it would fair to expect the stop to be made, however.

Bus companies sometimes, but not always, have a direct connection with the facilities at which rest stops are made. When the bus company owns, leases, controls, or has a contractual relationship with the facility for rest stop purposes, then provision of the rest stop facility is part of the service which a ticket buyer purchases. In these situations, the bus company has an obligation to ensure that the facilities meet ADA requirements.

§37.203 Lift maintenance. This provision is not substantively changed from the NPRM. It requires regular and frequent maintenance checks of lifts on OTRBs. The section does not require daily tests of lifts. However, it is intended to require frequent enough checks to ensure that any problems with lift operation are caught in a timely fashion. It is also intended to ensure that, when a lift is used to help a passenger board the bus, it is not the first time all day the lift has been operated. The section provides that a vehicle with an inoperable lift may be kept in service for up to five days from the discovery of the problem, if there is no substitute vehicle to be had. In such a situation, however, the company operating the bus with the broken lift is not excused from paying compensation under §37.199.

§37.205 Additional passengers who use wheelchairs. This section concerns a situation in which there are more wheelchair users seeking to travel on a bus than there are securement locations. Passengers would be assigned to the securement locations on a first-come, first-served basis. Additional passengers would be offered an opportunity to transfer to a vehicle seat. They would board via the lift but would then have to be assisted to a vehicle seat (e.g., through use of an aisle chair). The passenger’s wheelchair would be stowed in the baggage compartment, in the same way provided for in §37.169.

If the passenger did not accept this offer, the passenger would not have to be provided transportation on the bus. Assuming an accessible bus had been provided for the trip, the bus company would not owe the passenger compensation in this case.

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

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

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

§37.213 Information collection requirements. This section requires four different recordkeeping/reporting requirements. The first has to do with 48-hour advance notice and compensation. The second has to do with equivalent service and compensation. In both cases, the section requires bus operators to fill out a form when compensation has to be provided. The former section requires part of a form to be filled out and provided to the passenger when a request for advance-notice service is made.

The third has to do with reporting information on ridership on accessible fixed-route buses. Fixed-route operators would separate out data for lift boardings on 48-hour service and other service. The fourth has to do with reporting information on the purchase and lease of accessible and inaccessible new and used buses, as well as the total numbers of buses in operators’ fleets.

The purposes of these information collection requirements are to provide data that the Department can use in its regulatory review (see §37.215) and to assist in our oversight of compliance by bus companies. Comments from both bus industry and disability community commenters suggested that recordkeeping and reporting of this kind would be useful for these purposes.

These information collection requirements are subject to Office of Management and Budget (OMB) review under the Paperwork Reduction Act (PRA). The Department will subsequently submit to OMB a PRA approval request, including our estimate of the information collection burden associated with these requirements. Because the Department has not yet provided this package to OMB, we are keeping our docket open for 90 days, to ensure that interested persons have the opportunity to comment on it to the Department as well as to OMB. The Department emphasizes that this comment period concerns only the information collection requirements of this section. Comments on other provisions of the final rule will not be considered.

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

Chart Summarizing Final Rule, as Compared to NPRM

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

NPRM Final Rule

REGULATORY ANALYSES AND NOTICES

This is a significant regulation under Executive Order 12866 and the Department’s Regulatory Policies and Procedures, both because of its cost impacts on the industry and the strong public interest in accessibility matters. The Department has prepared a Final Regulatory Assessment to accompany the rule, which we have placed in the docket for the rulemaking. The Office of Management and Budget (OMB) has reviewed this final rule and the regulatory assessment.

Under the Regulatory Flexibility Act, this proposal is likely to have a significant economic impact on a substantial number of small entities. Indeed, all but 21 of the approximately 3500 bus companies covered by this rule are small entities. We have incorporated a Regulatory Flexibility Analysis into the regulatory assessment.

The Small Business Administration Office of Advocacy commented on the NPRM, recommending a service-based approach for small entities coupled with an accountability mechanism. The final rule includes a number of provisions that are largely consistent with SBA recommendations:

• Small fixed-route carriers have the alternative of providing equivalent service, in lieu of obtaining accessible buses.

• Small fixed-route carriers are not subject to fleet accessibility deadlines.

• Until their fleets are 100 percent accessible, small fixed-route carriers would provide interim accessible bus service on a 48-hour advance notice basis.

• Small charter/tour carriers do not have a fleet accessibility percentage to meet and are not required to purchase accessible buses beyond what they need to meet the requirement for 48-hour advance notice service.

• Small mixed-service operators (who devote 25 percent or less of their fleets to fixed-route service) can meet all requirements through providing 48-hour advance notice service

• Small carriers do not have to obtain accessible used buses or retrofit existing buses.

• There is an accountability mechanism, of a type suggested by an association representing small carriers, for failure to meet service standards.

• The regulatory review provisions can benefit small carriers.

The Department has also placed an environmental assessment into the rulemaking docket. This rule does not have Federalism impacts under Executive Order 12612 sufficient to warrant a Federalism statement.

List of Subjects in 49 CFR Part 37

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

ISSUED THIS 17th DAY OF SETEMBER, 1998, AT WASHINGTON, D.C.

/signed/

_________________________________

RODNEY E. SLATER

SECRETARY OF TRANSPORTATION

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

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

1. The authority for Part 37 is revised to read as follows to read as follows:

AUTHORITY: 42 U.S.C. 12101 - 12213; 49 U.S.C. 322.

2. Section 37.3 of Part 37 is amended by adding the following definition, placed in alphabetical order with the existing definitions, to read as follows:

§37.3 Definitions.

* * * * *

Small operator means, in the context of over-the-road buses (OTRBs), a private entity primarily in the business of transporting people that is not a Class I motor carrier. To determine whether an operator has sufficient average annual gross transportation operating revenues to be a Class I motor carrier, its revenues are combined with those of any other OTRB operator with which it is affiliated.

* * * * *

4. A new Subpart H, consisting of §§37.181 through 37.215, is added to Part 37, to read as follows:

SUBPART H - OVER-THE-ROAD BUSES (OTRBs)

Sec. 3 7.181 Applicability dates.

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

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

37.187 Interline service.

37.189 Service requirement for OTRB demand-responsive systems.

37.191 Special provision for small mixed-service operators.

37.193 Interim service requirements

37.195 Purchase or lease of OTRBs by private entities not primarily in

the business of transporting people.

37.197 Remanufactured OTRBs.

37.199 Compensation for failure to provide required vehicles or service.

37.201 Intermediate and rest stops.

37.203 Lift maintenance.

37.205 Additional passengers with wheelchairs.

37.207 Discriminatory practices.

37.209 Training and other requirements.

37.211 Effect of NHTSA and FHWA safety rules.

37.213 Information collection requirements.

37.215 Review of requirements.

Appendix A to subpart H of part 37 - Forms for advance notice requests and provision of equivalent service.

SUBPART H - OVER-THE-ROAD BUSES (OTRBs)

§37.181 Applicability dates.

This subpart applies to all private entities that operate OTRBs. The requirements of the subpart begin to apply to large operators beginning [insert date two years and 30 days from the date of publication] and to small operators beginning [insert date three years and 30 days from the date of publication].

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

The following requirements apply to private entities that are primarily in the business of transporting people, whose operations affect commerce, and that operate a fixed-route system, with respect to OTRBs delivered to them on or after the date on which this subpart applies to them:

(a) Large operators If a large entity operates a fixed-route system, and purchases or leases a new OTRB for or in contemplation of use in that system, it shall ensure that the vehicle is readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs.

(b) Small operators If a small entity operates a fixed-route system, and purchases or leases a new OTRB for or in contemplation of use in that system, it must do one of the following two things:

(1) Ensure that the vehicle is readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs; or

(2) Ensure that equivalent service, as defined in §37.105, is provided to individuals with disabilities, including individuals who use wheelchairs. To meet this equivalent service standard, the service provided by the operator must permit a wheelchair user to travel in his or her own mobility aid.

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

Each large operator subject to the requirements of §37.183 shall ensure that --

(a) By [insert date 8 years and 30 days from the date of publication of this subpart] no less than 50 percent of the buses in its fleet with which it provides fixed-route service are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs.

(b) By [insert date 14 years and 30 days from the date of publication of this subpart], 100 percent of the buses in its fleet with which it provides fixed-route service are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs.

(c) Request for time extension. An operator may apply to the Secretary for a time extension of the fleet accessibility deadlines of this section. If he or she grants the request, the Secretary sets a specific date by which the operator must meet the fleet accessibility requirement. In determining whether to grant such a request, the Secretary considers the following factors:

(1) Whether the operator has purchased or leased, since [insert date 2 years and 30 days from the date of publication of this subpart], enough new OTRBs to replace 50 percent of the OTRBs with which it provides fixed-route service by [insert date 8 years and 30 days from the date of publication of this subpart] or 100 percent of such OTRBs by [insert date 14 years and 30 days from the date of publication of this subpart];

(2) Whether the operator has purchased or leased, between [insert date 30 days from the date of publication of this subpart] and [insert date 2 years and 30 days from the date of this subpart], a number of new inaccessible OTRBs significantly exceeding the number of buses it would normally obtain in such a period;

(3) The compliance with all requirements of this part by the operator over the period between [insert date 30 days from the date of publication of this subpart] and the request for time extension.

§37.187 Interline service.

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

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

Example 2. Operator X fails to provide the required information in a timely manner to Operator Y. Operator X is responsible for compensating the passenger for the consequent unavailability of an accessible bus or equivalent service, as applicable, on the B-C leg of the interline trip.

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

Example 1. In Example 1 to paragraph (a) of this section, Operator X provides the required information to Operator Y in a timely fashion. However, Operator Y fails to provide an accessible bus or equivalent service to the passenger at Point B as the rules require. Operator Y is responsible for compensating the passenger as provided in §37. 199.

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

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

Example 1. Operator Y’s office is staffed only during normal weekday business hours. Operator Y must have a means of receiving communications from carriers with which it interlines (e.g., telephone answering machine, fax, computer) when no one is in the office.

Example 2. Operator Y has the responsibility to monitor its communications devices at reasonable intervals to ensure that it can act promptly on the basis of messages received. If Operator Y receives a message from Operator X on its answering machine on Friday night, notifying Y of the need for an accessible bus on Monday morning, it has the responsibility of making sure that the accessible bus is there on Monday morning. Operator Y is not excused from its obligation because no one checked the answering machine over the weekend.

§37.189 Service requirement for OTRB demand-responsive systems.

(a) This section applies to private entities primarily in the business of transporting people, whose operations affect commerce, and that provide demand-responsive OTRB service. Except as needed to meet the other requirements of this section, these entities are not required to purchase or lease accessible buses in connection with providing demand-responsive service.

(b) Demand-responsive operators shall ensure that, beginning one year from the date on which the requirements of this subpart begin to apply to the entity, any individual with a disability who requests service in an accessible OTRB receives such service. This requirement applies to both large and small operators.

(c) The operator may require up to 48 hours' advance notice to provide this service.

(d) If the individual with a disability does not provide the advance notice the operator requires under paragraph (a) of this section, the operator shall nevertheless provide the service if it can do so by making a reasonable effort.

(e) To meet this requirement, an operator is not required to fundamentally alter its normal reservation policies or to displace another passenger who has reserved a seat on the bus. The following examples illustrate the provisions of this paragraph (e):

Example 1. A tour bus operator requires all passengers to reserve space on the bus three months before the trip date. This requirement applies to passengers with disabilities on the same basis as other passengers. Consequently, an individual passenger who is a wheelchair user would have to request an accessible bus at the time he or she made his reservation, at least three months before the trip date. If the individual passenger with a disability makes a request for space on the trip and an accessible OTRB 48 hours before the trip date, the operator could refuse the request because all passengers were required to make reservations three months before the trip date.

Example 2. A group makes a reservation to charter a bus for a trip four weeks in advance. A week before the trip date, the group discovers that someone who signed up for the trip is a wheelchair user who needs an accessible bus, or someone who later buys a seat in the block of seats the group has reserved needs an accessible bus. A group representative or the passenger with a disability informs the bus company of this need more than 48 hours before the trip date. The bus company must provide an accessible bus.

Example 3. While the operator’s normal deadline for reserving space on a charter or tour trip has passed, a number of seats for a trip are unfilled. The operator permits members of the public to make late reservations for the unfilled seats. If a passenger with a disability calls 48 hours before the trip is scheduled to leave and requests a seat and the provision of an accessible OTRB, the operator must meet this request, as long as it does not displace another passenger with a reservation.

Example 4. A tour bus trip is nearly sold out three weeks in advance of the trip date. A passenger with a disability calls 48 hours before the trip is scheduled to leave and requests a seat and the provision of an accessible OTRB. The operator need not meet this request if it will have the effect of displacing a passenger with an existing reservation. If other passengers would not be displaced, the operator must meet this request.

§37.191 Special provision for small mixed-service operators.

(a) For purposes of this section, a small mixed-service operator is a small operator that provides both fixed-route and demand-responsive service and does not use more than 25 percent of its buses for fixed-route service.

(b) An operator meeting the criteria of paragraph (a) of this section may conduct all its trips, including fixed-route trips, on an advance-reservation basis as provided for demand-responsive trips in §37.189. Such an operator is not required to comply with the accessible bus acquisition/equivalent service obligations of §37.183(b).

§37.193 Interim service requirements.

(a) Until 100 percent of the fleet of a large or small operator uses to provide fixed-route service is composed of accessible OTRBs, the operator shall meet the following interim service requirements:

(1) Beginning one year from the date on which the requirements of this subpart begin to apply to the operator, it shall ensure that any individual with a disability that requests service in an accessible OTRB receives such service.

(i) The operator may require up to 48 hours' advance notice to provide this service.

(ii) If the individual with a disability does not provide the advance notice the operator requires, the operator shall nevertheless provide the service if it can do so by making a reasonable effort.

(iii) If the trip on which the person with a disability wishes to travel is already provided by an accessible bus, the operator has met this requirement.

(2) Before a date one year from the date on which this subpart applies to the operator, an operator which is unable to provide the service specified in paragraph (a) of this section shall comply with the requirements of §37.169.

(3) Interim service under this paragraph (a) is not required to be provided by a small operator who is providing equivalent service to its fixed-route service as provided in §37.183(b)(2).

(b) Some small fixed-route operators may never have a fleet 100 percent of which consists of accessible buses (e.g., a small fixed-route operator who exclusively or primarily purchases or leases used buses). Such an operator must continue to comply with the requirements of this section with respect to any service that is not provided entirely with accessible buses.

(c) Before a date one year from the date on which this subpart applies to an operator providing demand-responsive service, an operator which is unable to provide the service described in §37.189 shall comply with the requirements of §37.169.

§37.195 Purchase or lease of OTRBs by private entities not primarily in the business of transporting people.

This section applies to all purchases or leases of new vehicles by private entities which are not primarily engaged in the business of transporting people, with respect to buses delivered to them on or after the date on which this subpart begins to apply to them.

(a) Fixed-route systems. If the entity operates a fixed-route system and purchases or leases an OTRB for or in contemplation of use on the system, it shall meet the requirements of §37.183 (a) or (b), as applicable.

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

§37.197 Remanufactured OTRBs.

(a) This section applies to any private entity operating OTRBs that takes one of the following actions:

(1) On or after the date on which this subpart applies to the entity, it remanufactures an OTRB so as to extend its useful life for five years or more or makes a solicitation for such remanufacturing; or

(2) Purchases or leases an OTRB which has been remanufactured so as to extend its useful life for five years or more, where the purchase or lease occurs after the date on which this subpart applies to the entity and during the period in which the useful life of the vehicle is extended.

(b) In any situation in which this subpart requires an entity purchasing or leasing a new OTRB to purchase or lease an accessible OTRB, OTRBs acquired through the actions listed in paragraph (a) of this section shall, to the maximum extent feasible, be readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs.

(c) For purposes of this section, it shall be considered feasible to remanufacture an OTRB so as to be readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs, unless an engineering analysis demonstrates that including accessibility features required by this part would have a significant adverse effect on the structural integrity of the vehicle.

§37.199 Compensation for failure to provide required vehicles or service.

(a) Operators shall pay compensation to passengers with disabilities as provided in this section in the following situations:

(1) If a demand-responsive operator under §37.189 or a small mixed-service operator under §37.191 fails to provide in a timely manner an accessible OTRB to a passenger with a disability who has made a timely request for such a bus;

(2) If a fixed-route operator providing interim service under §37.193(a)(1) fails to provide in a timely manner an accessible OTRB to a passenger with a disability who has made a timely request for such a bus;

(3) If a small fixed-route operator who chooses to provide equivalent service under §37.183(b)(2) fails to provide equivalent service to a passenger;

(4) If required service is not provided to a passenger with a disability because accessibility equipment does not function or operator personnel do not perform essential tasks;

(5) If, for a trip involving an interline connection (see §37.187), the operator with whom the passenger purchases the ticket or makes a reservation for the trip fails to communicate immediately with other operators providing a portion of the trip to inform them of the need for an accessible bus or equivalent service, as applicable, with the result that other operators do not provide the service required by this subpart; or

(6) If an operator required to provide interim service under §37.169, after the date on which this subpart begins to apply to the operator, fails to provide this service.

(b) When one of the events in paragraph (a) of this section calling for compensation occurs, the operator shall pay compensation regardless of the reason for the failure to provide the required service. The only exception to this requirement is a situation in which, for reasons beyond the control of the operator, no transportation is provided to any passenger.

(c) The amount of the compensation shall be the following:

(1) On the first occasion on which the operator fails to provide the required service as provided in paragraph (a) of this section to any passenger, $300;

(2) On the second such occasion, $400;

(3) On the third such occasion, $500;

(4) On the fourth such occasion, $600;

(5) On the fifth and subsequent such occasions, $700.

(d) The operator shall provide this compensation to the passenger within seven working days of the date on which the operator failed to provide the accessible OTRB or provide equivalent service, as applicable.

(e) Payment of compensation under this section is not a defense to legal action brought against the operator to enforce the Americans with Disabilities Act or this part.

§37.201 Intemediate and rest stops.

(a) Whenever an OTRB makes an intermediate or rest stop, a passenger with a disability, including an individual using a wheelchair, shall be permitted to leave and return to the bus on the same basis as other passengers. The operator shall ensure that assistance is provided to passengers with disabilities as needed to enable the passenger to get on and off the bus at the stop (e.g., operate the lift and provide assistance with securement; provide other boarding assistance if needed, as in the case of a wheelchair user who has transferred to a vehicle seat because other wheelchair users occupied all securement locations).

(b) If an OTRB operator owns, leases, or controls the facility at which a rest or intermediate stop is made, or if an OTRB operator contracts with the person who owns, leases, or controls such a facility to provide rest stop services, the OTRB operator shall ensure the facility complies fully with applicable requirements of the Americans with Disabilities Act.

(c) If an OTRB equipped with an inaccessible restroom is making an express run of three hours or more without a rest stop, and a passenger with a disability who is unable to use the inaccessible restroom requests an unscheduled rest stop, the operator shall make a good faith effort to accommodate the request. The operator is not required to make the stop. However, if the operator does not make the stop, the operator shall explain to the passenger making the request the reason for its decision not to do so.

§37.203 Lift maintenance.

(a) The entity shall establish a system of regular and frequent maintenance checks of lifts sufficient to determine if they are operative.

(b) The entity shall ensure that vehicle operators report to the entity, by the most immediate means available, any failure of a lift to operate in service.

(c) Except as provided in paragraph (d) of this section, when a lift is discovered to be inoperative, the entity shall take the vehicle out of service before the beginning of the vehicle's next trip and ensure that the lift is repaired before the vehicle returns to service.

(d) If there is no other vehicle available to take the place of an OTRB with an inoperable lift, such that taking the vehicle out of service before its next trip will reduce the transportation service the entity is able to provide, the entity may keep the vehicle in service with an inoperable lift for no more than five days from the day on which the lift is discovered to be inoperative.

§37.205 Additional passengers who use wheelchairs.

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

§37.207 Discriminatory practices.

It shall be considered discrimination for any operator to –

(a) Deny transportation to passengers with disabilities, except as

provided in §37.5(h);

(b) Use or request the use of persons other than the operator’s employees (e.g., family members or traveling companions of a passenger with a disability, medical or public safety personnel) for routine boarding or other assistance to passengers with disabilities, unless the passenger requests or consents to assistance from such persons;

(c) Require or request a passenger with a disability to reschedule his or her trip, or travel at a time other than the time the passenger has requested, in order to receive transportation as required by this subpart;

(d) Fail to provide reservation services to passengers with disabilities equivalent to those provided other passengers; or

(e) Fail or refuse to comply with any applicable provision of this part.

§37.209 Training and other requirements.

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

§37.211 Effect of NHTSA and FHWA safety rules.

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

§37.213 Information collection requirements.

(a) This paragraph (a) applies to demand-responsive operators under §37.189 and fixed-route operators under §37.193(a)(1) that are required to, and small mixed-service operators under §37.191 that choose to, provide accessible OTRB service on 48 hours’ advance notice.

(1) When the operator receives a request for accessible bus service, the operator shall complete lines 1-8 of the Form A in the Appendix A to this subpart. The operator shall immediately provide a copy of the form to the passenger.

(2) On the scheduled date of the trip, the operator shall complete lines 9-11 of the form. In any case in which the requested accessible bus was not provided, the operator shall immediately provide a copy of the form to the passenger.

(3) The operator shall retain its copy of the completed form for five years. The operator shall make these forms available to Department of Transportation or Department of Justice officials at their request.

(4) Beginning [insert date three years and 30 days from the date of publication of this subpart] for large operators, and [insert date four years and 30 days from the date of publication of this subpart] for small operators, and on that date in each year thereafter, each operator shall submit a summary of its forms to the Department of Transportation. The summary shall state the number of requests for accessible bus service, the number of times these requests were met, and the number of times compensation was paid. It shall also include the name, address, telephone number, and contact person name for the operator.

(b) This paragraph (b) applies to small fixed-route operators who choose to provide equivalent service to passengers with disabilities under §37.183(b)(2).

(1) The operator shall complete Form B in the Appendix A to this subpart on every occasion on which a passenger with a disability needs equivalent service in order to be provided transportation.

(2) The operator shall provide one copy of the form to the passenger and retain another copy of the completed form for five years. The operator shall make these forms available to Department of Transportation or Department of Justice officials at their request.

(3) Beginning [insert date four years and 30 days from the date of publication of this subpart] , and on that date in each year thereafter, each operator shall submit a summary of its forms to the Department of Transportation. The summary shall state the number of situations in which equivalent service was needed, the number of times such service was provided, and the number of times compensation was paid. It shall also include the name, address, telephone number, and contact person name for the operator.

(c) Beginning [insert date two years and 30 days from the date of publication of this subpart] for large operators, and [insert date three years and 30 days from the date of publication of this subpart] for small operators, and on that date in each year thereafter, each fixed-route operator shall submit to the Department a report on how many passengers with disabilities used the lift to board accessible buses. For fixed-route operators, the report shall reflect separately the data pertaining to 48-hour advance reservation service and other service.

(d) Each operator shall submit to the Department, [insert date one year and 30 days from the date of publication of this rule] and each year thereafter on that date, a summary report listing the number of new buses and used buses it has purchased or leased during the preceding year, and how many of the buses in each category are accessible. It shall also include the total number of buses in the operator’s fleet and the name, address, telephone number, and contact person name for the operator.

(e) The information required to be submitted to the Department shall be sent to the following address:

Bureau of Transportation Statistics

400 7th Street, S.W.

Washington, D.C. 20590.

§37.215 Review of requirements.

(a) Beginning [insert date seven years and 30 days from the date of publication of this subpart], the Department will review the requirements of §37.189 and their implementation. The Department will complete this review by [insert date eight years and 30 days from the date of publication of this subpart].

(1) As part of this review, the Department will consider factors including, but not necessarily limited to, the following:

(i) The percentage of accessible buses in the demand-responsive fleets of large and small demand-responsive operators.

(ii) The success of small and large demand-responsive operators’ service at meeting the requests of passengers with disabilities for accessible buses in a timely manner.

(iii) The ridership of small and large operators’ demand-responsive service by passengers with disabilities.

(iv) The volume of complaints by passengers with disabilities.

(v) Cost and service impacts of implementation of the requirements of these sections.

(2) The Department will make one of the following decisions on the basis of the review:

(i) Retain §37.189 without change; or

(ii) Modify the requirements of §37.189 for large and/or small demand-responsive operators.

(b) Beginning [insert date eight years and 30 days from the dateof publication of this subpart], the Department will review the requirements of §§37.183, 37.185, 37.187, 37.191 and 37.193(a) and their implementation. The Department will complete this review by [insert date nine years and 30 days from the date of publication of this subpart].

(1) As part of this review, the Department will consider factors including, but not necessarily limited to, the following:

(i) The percentage of accessible buses in the fixed-route fleets of large and small fixed-route operators.

(ii) The success of small and large fixed-route operators’ interim or equivalent service at meeting the requests of passengers with disabilities for accessible buses in a timely manner.

(iii) The ridership of small and large operators’ fixed-route service by passengers with disabilities.

(iv) The volume of complaints by passengers with disabilities.

(v) Cost and service impacts of implementation of the requirements of these sections.

(2) The Department will make one of the following decisions on the basis of the review:

(i) Retain §§37.183, 37.185, 37.187, 37.191 and 37.193(a) without change; or

(ii) Modify the requirements of §§37.183, 37.185, 37.187, 37.191 and 37.193(a) for large and/or small fixed-route operators.

 

 

APPENDIX A TO SUBPART H of PART 37 -- FORMS FOR ADVANCE NOTICE REQUESTS AND PROVISION OF EQUIVALENT SERVICE

Form A - For Use by Providers of Advance Notice Service

1. Operator’s name _______________________

2. Address ________________________________

________________________________

3. Phone number: __________________________

4. Passenger’s name: ________________________

5. Address: ________________________________

________________________________

6. Phone number: ___________________________

7. Scheduled date and time of trip: ____________________

8. Date and time of request: __________________________

9. Was accessible bus provided for trip? Yes _____ no _____

10. Was there a basis recognized by U.S. Department of transportation regulations for not providing an accessible bus for the trip? Yes _______ no _________

If yes, explain ____________________________________________

_________________________________________________________

11. If the answers to items 9 and 10 were both no, attach documentation that compensation required by department of transportation regulations was paid.

Form B - For Use by Providers of Equivalent Service

1. Operator’s name _______________________

2. Address ________________________________

________________________________

3. Phone number: __________________________

4. Passenger’s name: ________________________

5. Address: ________________________________

________________________________

6. Phone number: ___________________________

7. Date and time of trip: ____________________

8. Location of need for equivalent service: __________________________

9. Was equivalent service provided for trip? Yes _____ no _____

10. If the answer to items 9 and 10 is no, attach documentation that compensation required by Department of Transportation regulations was paid.

Final Rule on Over-the-Road Buses
First Section ~ Second Section

Briefing Room