APPENDIX D - CONSTRUCTION AND INTERPRETATION OF            
PROVISIONS OF 49 CFR PART 37

     This appendix explains the Department's construction and
interpretation of provisions of 49 CFR Part 37.  It is intended to
be used as definitive guidance concerning the meaning and
implementation of these provisions.  The Appendix is organized on
a section-by-section basis.  Some sections of the rule are not
discussed in the Appendix, because they are self-explanatory or we
do not currently have interpretive material to provide concerning
them.
     The Department also provides guidance by other means, such as
manuals and letters.  The Department intends to update this
Appendix periodically to include guidance, provided in response to
inquiries about specific situations, that is of general relevance
or interest.

Amendments to 49 CFR Part 27.

     Section 27.67 (d) has been revised to reference the Access
Board facility guidelines (found in Appendix A to Part 37) as well
as the Uniform Federal Accessibility Standard (UFAS).  This change
was made to ensure consistency between requirements under section
504 and the ADA.  Several caveats relating to the application of
UFAS (e.g., that spaces not used by the public or likely to result
in the employment of individuals with disabilities would not have
to meet the standards) have been deleted.  It is the Department's
understanding that provisions of the Access Board standards and
Part 37 make them unnecessary.
     The Department is aware that there is a transition period
between the publication of this rule and the effective date of many
of its provisions (e.g., concerning facilities and paratransit
services) during which section 504 remains the basic authority for
accessibility modifications.  In this interval, the Department
expects recipients' compliance with section 504 to look forward to
compliance with the ADA provisions.  That is, if a recipient is
making a decision about the shape of its paratransit service
between the publication of this rule and January 26, 1992, the
decision should be in the direction of service that will help to
comply with post-January 1992 requirements.  A recipient that
severely curtailed its present paratransit service in October, and
then asked for a three or five-year phase-in of service under its
paratransit plan, would not be acting consistent with this policy.
     Likewise, the Department would view with disfavor any attempt
by a recipient to accelerate the beginning of the construction,
installation or alteration of a facility to before January 26,
1992, to "beat the clock" and avoid the application of this rule's
facility standards.   The Department would be very reluctant to
approve grants, contracts, exemption requests etc., that appear to
have this effect.  The purpose of the Department's administration
of section 504 is to ensure compliance with the national policy
stated in the ADA, not to permit avoidance of it.

Subpart A - General
37.3  Definitions. 

The definition of "commuter authority" includes a list of commuter
rail operators drawn from a statutory reference in the ADA.  It
should be noted that this list is not exhaustive.  Other commuter
rail operators (e.g., in Chicago or San Francisco) would also be
encompassed by this definition.    
The definition of "commuter bus service" is important because the
ADA does not require complementary paratransit to be provided with
respect to commuter bus service operated by public entities..  The
rationale that may be inferred for the statutory exemption for this
kind of service concerns its typical characteristics (e.g., no
attempt to comprehensively cover a service area, limited route
structure, limited origins and destinations, interface with another
mode of transportation, limited purposes of travel).  These
characteristics can be found in some transportation systems other
than bus systems oriented toward work trips.  For example, bus
service that is used as a dedicated connecter to commuter or
intercity rail service, certain airport shuttles, and university
bus systems share many or all of these characteristics.  As
explained further in the discussion of Subpart B, the Department
has determined that it is appropriate to cover these services with
the requirements applicable to commuter bus systems.   
     The definitions of "designated public transportation" and
"specified public transportation" exclude transportation by
aircraft.  Persons interested in matters concerning access to air
travel for individuals with disabilities should refer to 14 CFR
Part 382, the Department's regulation implementing the Air Carrier
Access Act.  Since the facility requirements of this Part refer to
facilities involved in the provision of designated or specified
public transportation, airport facilities are not covered by this
Part.  DOJ makes clear that public and private airport facilities
are covered under its Title II and Title III regulations,
respectively.  The examples given in the definition of "facility"
all relate to ground transportation.  We would point out that,
since transportation by passenger vessels is covered by this rule
and by DOJ rules, such vessel-related facilities as docks, wharfs,
vessel terminals etc. fall under this definition.  It is intended
that specific requirements for vessels and related facilities will
be set forth in future rulemaking. 
     The definitions of "fixed route system" and "demand responsive
system" derive directly from the ADA's definitions of these
terms.Some systems, like a typical city bus system or a dial-a-ride
van system, fit clearly into one category or the other.  Other
systems may not so clearly fall into one of the categories. 
Nevertheless, because how a system is categorized has consequences
for the requirements it must meet, entities must determine, on a
case-by-case base, into which category their systems fall.       In
making this determination, one of the key factors to be considered
is whether the individual, in order to use the service, must
request the service, typically by making a call. 
     With fixed route service, no action by the individual is
needed to initiate public transportation.  If an individual is at 
a bus stop at the time the bus is scheduled to appear, then that
individual will be able to access the transportation system.   
With demand-responsive  service, an additional step must be taken
by the individual before he or she can ride the bus, i.e., the
individual must make a telephone call.(S. Rept. 101-116 at 54).
     Other factors, such as the presence or absence of published
schedules, or the variation of vehicle intervals in anticipation of
differences in usage, are less important in making the distinction
between the two types of service.  If a service is provided along
a given route, and a vehicle will arrive at certain times
regardless of whether a passenger actively requests the vehicle,
the service in most cases should be regarded as fixed route rather
than demand responsive.
     At the same time, the fact that there is an interaction
between a passenger and transportation service does not necessarily
make the service demand responsive.  For many types of service
(e.g., intercity bus, intercity rail) which are clearly fixed
route, a passenger has to interact with an agent to buy a ticket. 
Some services (e.g., certain commuter bus or commuter rail
operations) may use flag stops, in which a vehicle along the route
does not stop unless a passenger flags the vehicle down.  A
traveler staying at a hotel usually makes a room reservation before
hopping on the hotel shuttle.  This kind of interaction does not
make an otherwise fixed route service demand responsive.
     On the other hand, we would regard a system that permits
user-initiated deviations from routes or schedules as
demand-responsive..  For example, if a rural public transit system
(e.g., a section 18 recipient) has a few fixed routes, the fixed
route portion of its system would be subject to the requirements of
Subpart F for complementary paratransit service.   If the entity
changed its system so that it operated as a route-deviation system,
we would regard it as a demand responsive system.  Such a system
would not be subject to complementary paratransit requirements.  
     The definition of "individual with a disability" excludes
someone who is currently engaging in the illegal use of drugs, when
a covered entity is acting on the basis of such use.  This concept
is more important in employment and public accommodations contexts
than it is in transportation, and is discussed at greater length in
the DOJ and EEOC rules.  Essentially, the definition says that,
although drug addiction (i.e., the status or a diagnosis of being
a drug abuser) is a disability, no one is regarded as being an
individual with a disability on the basis of current illegal drug
use. 
     Moreover, even if an individual has a disability, a covered
entity can take action against the individual if that individual is
currently engaging in illegal drug use.  For example, if a person
with a mobility or vision impairment is ADA paratransit eligible,
but is caught possessing or using cocaine or marijuana on a
paratransit vehicle, the transit provider can deny the individual
further eligibility.  If the individual has successfully undergone
rehabilitation or is no longer using drugs, as explained in the
preamble to the DOJ rules, the transit provider could not continue
to deny eligibility on the basis that the individual was a former
drug user or still was diagnosed as a person with a substance abuse
problem.
     We defined "paratransit" in order to note its specialized
usage in the rule.  Part 37 uses this term to refer to the
complementary paratransit service comparable to public fixed route
systems which  must be provided.  Typically, paratransit is
provided in a demand responsive mode.  Obviously, the rule refers
to a wide variety of demand responsive services that are not
"paratransit," in this specialized sense.
     The ADA's definition of "over-the-road bus" may also be
somewhat narrower than the common understanding of the term.  The
ADA definition focuses on a bus with an elevated passenger deck
over a baggage compartment (i.e., a "Greyhound-type" bus).  Other
types of buses commonly referred to as "over-the-road buses," which
are sometimes used for commuter bus or other service, do not come
within this definition.  Only buses that do come within the
definition are subject to the over-the-road bus exception to
accessibility requirements in Title III of the ADA.    
     For terminological clarity, we want to point out that two
different words are used in ADA regulations to refer to devices on
which individuals with hearing impairments communicate over
telephone lines.  DOJ uses the more traditional term
"telecommunications device for the deaf" (TDD).  The Access Board
uses a newer term, "text telephone."  The DOT rule uses the terms
interchangably.
     The definition of "transit facility" applies only with
reference to the TDD requirement of Appendix A to this Part.  The
point of the definition is to exempt from TDD requirements open
structures, like bus shelters, or facilities which are not used
primarily as transportation stops or terminals.  For example, a
drug store in a small town may sell intercity bus tickets, and
people waiting for the bus may even wait for the bus inside the
store.  But the drug store's raison d'etre is not to be a bus
station.  Its transportation function is only incidental. 
Consequently, its obligations with respect to TDDs would be those
required of a place of public accommodation by DOJ rules.
     A "used vehicle" means a vehicle which has prior use;  prior,
that is, to its acquisition by its present owner or lessee.  The
definition is not relevant to existing vehicles in one's own fleet,
which were obtained before the ADA vehicle accessibility
requirements took effect.
     A "vanpool" is a voluntary commuter ridesharing arrangement
using a van with a seating capacity of more than seven persons,
including the driver..  Carpools are not included in the
definition.  There are some systems using larger vehicles (e.g.,
buses) that operate, in effect, as vanpools.  This definition
encompasses such systems.  Vanpools are used for daily work trips,
between commuters' homes (or collection points near them) and work
sites (or drop points near them).  Drivers are themselves commuters
who are either volunteers who receive no compensation for their
efforts or persons who are reimbursed by other riders for the
vehicle, operating, and driving costs.       The definition of
"wheelchair" includes a wide variety of mobility devices.  This
inclusiveness is consistent with the legislative history of the ADA
(See S. Rept. 101-116 at 48).  While some mobility devices may not
look like many persons' traditional idea of a wheelchair, three and
four wheeled devices, of many varied designs, are used by
individuals with disabilities and must be transported.
  The definition of "common wheelchair," developed by the Access
Board, is intended to help transit providers determine which
wheelchairs they have to carry.  The definition involves an
"envelope" relating to the Access Board requirements for vehicle
lifts.
     A lift conforming to Access Board requirements is 30" x 48"
and capable of lifting a wheelchair/occupant combination of up to
600 pounds.  Consequently, a common wheelchair is one that fits
these size and weight dimensions.  Devices used by individuals with
disabilities that do not fit this envelope (e.g., many "gurneys")
do not have to be carried.

37.5  Nondiscrimination.

     This section states the general nondiscrimination obligation
for entities providing transportation service.  It should be noted
that virtually all public and private entities covered by this
regulation are also covered by DOJ regulations, which have more
detailed statements of general nondiscrimination obligations.    
     Under the ADA, an entity may not consign an individual with
disabilities to a separate, "segregated," service for such persons,
if the individual can in fact use the service for the general
public.  This is true even if the individual takes longer, or has
more difficulty, than other persons in using the service for the
general public.
     One instance in which this principle applies concerns the use
of designated priority seats (e.g., the so-called "elderly and
handicapped" seats near the entrances to buses).  A person with a
disability (e.g., a visual impairment) may choose to take advantage
of this accommodation or not.  If not, it is contrary to the rule
for the entity to insist that the individual must sit in the
priority seats.     
     The prohibition on special charges applies to charges for
service to individuals with disabilities that are higher than
charges for the same or comparable services to other persons.  For
example, if a shuttle service charges $20.00 for a ride from a
given location to the airport for most people, it could not charge
$40.00 because the passenger had a disability or needed to use the
shuttle service's lift-equipped van.  Higher mileage charges for
using an accessible vehicle would likewise be inconsistent with the
rule.  So would charging extra to carry a service animal
accompanying an individual with a disability.
     If a taxi company charges $1.00 to stow luggage in the trunk,
it cannot charge $2.00 to stow a folding wheelchair there.  This
provision does not mean, however, that a transportation provider
cannot charge nondiscriminatory fees to passengers with
disabilities.  The taxi company in the above example can charge a
passenger $1.00 to stow a wheelchair in the trunk; it is not
required to waive the charge.  This section does not prohibit the
fares for paratransit service which transit providers are allowed
to charge under 37.131(d).
     A requirement for an attendant is inconsistent with the
general nondiscrimination principle that prohibits policies that
unnecessarily impose requirements on individuals with disabilities
that are not imposed on others.  Consequently, such requirements
are prohibited.  An entity is not required to provide attendant
services (e.g., assistance in toileting, feeding, dressing) etc. 
     This provision must also be considered in light of the fact
that an entity may refuse service to someone who engages in
violent, seriously disrputive, or illegal conduct.  If an entity
may legitimately refuse service to someone, it may condition
service to him on actions that would mitigate the problem..  The
entity could require an attendant as a condition of providing
service it otherwise had the right to refuse.
     The rule also points out that involuntary conduct related to
a disability that may offend or annoy other persons, but which does
not pose a direct threat, is not a basis for refusal of
transportation.  For example, some persons with Tourette's syndrome
may make involuntary profane exclamations.  These may be very
annoying or offensive to others, but would not be a ground for
denial of service.   Nor would it be consistent with the
nondiscrimination requirements of this Part to deny service based
on fear or misinformation about the a disability.  For example, a
transit provider could not deny service to a person with HIV
disease because its personnel or other passengers are afraid of
being near people with that condition.
     This section also prohibits denials of service or the placing
on services of conditions inconsistent with this Part on
individuals with disabilities because of insurance company policies
or requirements.  If an insurance company told a transit provider
that it would withdraw coverage, or raise rates, unless a transit
provider refused to carry persons with disabilities, or unless the
provider refused to carry three-wheeled scooters, this would not
excuse the provider from providing the service as mandate by this
Part.  This is not a regulatory requirement on insurance companies,
but simply says that covered entities must comply with this Part,
even in the face of difficulties with their insurance companies.

37.7 Standards for Accessible Vehicles 

     This section makes clear that, in order to meet accessibility
requirements of this rule, vehicles must comply with Access Board
standards, incorporated in DOT rules as 49 CFR Part 38.     
Paragraph (b) of 37.7 spells out a procedure by which an entity
(public or private) can deviate from provisions of Part 38 with
respect to vehicles.  The entity can make a case to the
Administrator that it is unable to comply with a particular portion
of Part 38, as written, for specified reasons, and that it is
providing comparable compliance compliance by some alternative
method.  The entity would have to describe how its alternative mode
of compliance would meet or exceed the level of access to or
usability of the vehicle that compliance with Part 38 would
otherwise provide.
     It should be noted that equivalent facilitation does not
provide a means to get a waiver of accessibility requirements. 
Rather, it is a way in which comparable (not a lesser degree of)
accessibility can be provided by other means.  The entity must
consult with the public through some means of public participation
in devising its alternative form of compliance, and the public
input must be reflected in the submission to the Administrator (or
the Federal Railroad Administrator in appropriate cases, such as a
request concerning Amtrak).  The Administrator will make a
case-by-case decision about whether compliance with Part 38 was
achievable and, if not, whether the proffered alternative complies
with the equivalent facilitation standard.   DOT intends to consult
with the Access Board in making these determinations.
     This equivalent facilitation provision can apply to buses or
other motor vehicles as well as to rail cars and vehicles.  An
example of what could be an equivalent facilitation would concern
rail cars which would leave too wide a horizontal gap between the
door and the platform.  If the operator used a combination of
bridgeplates and personnel to bridge the gap, it might be regarded
as an equivalent facilitation in appropriate circumstances. 
     Section 37.7(c) clarifies which specifications must be
complied with for over-the-road buses purchased by public entities
(under subpart D of part 37) or private entities standing in the
shoes of the public entity (as described in 37.23 of part 37). 
This section is necessary to make clear that over-the-road coaches
must be accessible, when they are purchased by or in furtherance of
a contract with a public entity.  While the October 4, 1990 rule
specified that over-the-road coaches must be accessible under these
circumstances, we had not previously specified what constitutes
accessibility.
     Accordingly, this paragraph specifies that an over-the-road
bus must have a lift which meets the performance requirements of a
regular bus lift  (see 38.23) and must meet the interim
accessibility features specified for all over-the-road buses in
Part 38, Subpart G.

37.9  Standards for Transportation Facilities.

     This section makes clear that, in order to meet accessibility
requirements of this rule, vehicles must comply with Appendix A to
Part 37, which incorporates the Access Board facility guidelines.
     Paragraph (b) of 37.9 provides that, under certain
circumstances, existing accessibility modifications to key station
facilities do not need to be modified further in order to conform
to Appendix A.  This is true even if the standards under which the
facility was modified differ from the Access Board guidelines or
provide a lesser standard of accessibility.
     To qualify for this "grandfathering," alterations must have
been begun before January 26, 1992.  As in other facility sections
of the rule, an alteration is deemed to begin with the issuance of
a notice to proceed or work order.  The existing modifications must
conform to ANSI A-117.1, Specifications for Making Buildings and
Facilities Accessible to and Usable by the Physically Handicapped
1980), or the Uniform Federal Accessibility Standard. (UFAS).    
     For example, if an entity used a Federal grant or loan or
money to make changes to a building, it would already have had to
comply with the Uniform Federal Accessibility Standards.  Likewise,
if a private entity, acting without any federal money in the
project, may have complied with the ANSI A117.1 standard.  So long
as the work was done in conformity with the standard that was in
effect when the work was done, the alteration will be considered
accessible.
     However, because one modification was made to a facility under
one of these standards, the entity still has a responsibility to
make other modifications needed to comply with applicable
accessibility requirements. For example, if an entity has made some
modifications to a key station according to one of these older
standards, but the modifications do not make the key station
entirely accessible as this rule requires, then additional
modifications would have to be made according to the standards of
Appendix A.  Suppose this entity has put an elevator into the
station to make it accessible to individuals who use wheelchairs. 
If the elevator does not fully meet Appendix A standards, but met
the applicable ANSI standard when it was installed, it would not
need further modifications now.  But if it had not already done so,
the entity would have to install a tactile strip along the platform
edge in order to make the key station fully accessible as provided
in this rule.  The tactile strip would have to meet Appendix A
requirements.
     The rule specifically provides that "grandfathering" applies
only to alterations of individual elements and spaces and only to
the extent that provisions covering those elements or spaces are
found in UFAS or AHSI A117.1.  For example, alterations to the
telephones in a key station may have been carried out in order to
lower them to meet the requirements of UFAS, but telecommunications
devices for the deaf (TDDs) were not installed.  (Neither UFAS nor
the ANSI standard include requirements concerning TDDs).  However,
because Appendix A does contain TDD requirements, the key station
must now be altered in accordance with the standards for TDDs. 
Similarly, earlier alteration of an enture station in accordance
with UFAS or the ANSI standard would not relieve an entity from
compliance with any applicable provision concerning the gap between
the platform between the platform and the vehicle in a key station,
because neither of these two standards addresses the interface
between vehicle and platform.
     New paragraph (c) of this section clarifies a provision of the
Access Board's standards concerning the construction of bus stop
pads at bus stops.  The final Access Board standard (found at
section 10.2.1(1) of Appendix A to Part 37) has been rewritten
slightly to clear up confusion about the perceived necessary
construction of a bus stop pad.  Section 10.2.1(1) does not require
that anyone build a bus stop pad; it does specify what a bus stop
pad must look like, if it is constructed.  The further clarifying
language in 37.9(c) explains that public entities must exert
control over the construction of bus stop pads if they have the
ability to do so.  The Access Board, as well as DOT, recognize that
most physical improvements related to bus stops are out of the
control of the transit provider.  Paragraph (c) of 37.9 merely
notes that where a transit provider does have control over the
construction, it must exercise that control to ensure that the pad
meets these specifications.
     One further clarification concerning the implication of this
provision deals with a bus loading island at which buses pull up on
both sides of the island.  It would be possible to read the bus pad
specification to require the island to be a minimum of 84 inches
wide (two widths of a bus stop pad), so that a lift could be
deployed from buses on both sides of the island at the same time. 
A double-wide bus pad, however, is likely to exceed available space
in most instances.       Where there is space, of course, building
a double-wide pad is one acceptable option under this rule. 
However, the combination of a pad of normal width and standard
operational practices may also suffice.  (Such practices could be
offered as an equivalent facilitation.)  For example, buses on
either side of the island could stop at staggered locations (i.e.,
the bus on the left side could stop several feet ahead of the bus
on the right side), so that even when buses were on both sides of
the island at once, their lifts could be deployed without conflict. 
Where it is possible, building the pad a little longer than normal
size could facilitate such an approach.  In a situation where
staggered stop areas are not feasible, an operational practice of
having one bus wait until the other's lift cycle had been completed
could do the job.  Finally, the specification does not require that
a pad be built at all.  If there is nothing that can be done to
permit lift deployment on both sides of an island, the buses can
stop on the street, or some other location, so long as the lift is
deployable.
     Like 37.7, this section contains a provision allowing an
entity to request approval for providing accessibility through an
equivalent facilitation.

  37.11  Administrative Enforcement.

     This section spells out administrative means of enforcing the
requirements of the ADA.  Recipients of Federal financial
assistance from DOT (whether public or private entities) are
subject to DOT's section 504 enforcement procedures.  The existing
procedures, including administrative complaints to the DOT Office
of Civil Rights, investigation, attempts at conciliation, and final
resort to proceedings to cut off funds to a noncomplying recipient,
will continue to be used.
     In considering enforcement matters, the Department is guided
by a policy that emphasizes compliance.  The aim of enforcement
action, as we see it, is to make sure that entities meet their
obligations, not to impose sanctions for their own sake.  The
Department's enforcement priority is on failures to comply with
basic requirements and  "pattern or practice" kinds of problems,
rather than on isolated operational errors. 
     Under the DOJ rules implementing Title II of the ADA (28 CFR
Part 35), DOT is a "designated agency" for enforcement of
complaints relating to transportation programs of public entities,
even if they do not receive Federal financial assistance.  When it
receives such a complaint, the Department will investigate the
complaint, attempt conciliation and, if conciliation is not
possible, take action under section 504 and/or refer the matter to
the DOJ for possible further action.
     Title III of the ADA does not give DOT any administrative
enforcement authority with respect to private entities whose
transportation services are subject to Part 37.  In its Title III
rule (28 CFR Part 36), DOJ assumes enforcement responsibility for
all Title III matters.  If the Department of Transportation
receives complaints of violations of Part 37 by private entities,
it will refer the matters to the DOJ.
     It should be pointed out that the ADA includes other
enforcement options.  Individuals have a private right of action
against entities who violate the ADA and its implementing
regulations.  The DOJ can take violators to court.  These
approaches are not mutually exclusive with the administrative
enforcement mechanisms described in this section.  An aggrieved
individual can complain to DOT about an alleged transportation
violation and go to court at the same time.  Use of administrative
enforcement procedures is not, under Titles II and III, an
administrative remedy that individuals must exhaust before taking
legal action.
     We also would point out that the ADA does not assert any
blanket preemptive authority over state or local nondiscrimination
laws and enforcement mechanisms.  While requirements of the ADA and
this regulation would preempt conflicting state or local provisions
(e.g., a building code or zoning ordinance that prevents compliance
with Appendix A or other facility accessibility requirements, a
provision of local law that said bus drivers could not leave their
seats to help secure wheelchair users), the ADA and this rule do
not prohibit states and localities from legislating in areas
relating to disability.  For example, if a state law requires a
higher degree of service than the ADA, that requirement could still
be enforced.   Also, states and localities may continue to enforce
their own parallel requirements.  For example, it would be a
violation of this rule for a taxi driver to refuse to pick up a
person based on that person's disability.  Such a refusal may also
be a violation of a county's taxi rules, subjecting the violator to
a fine or suspension of operating privileges.  Both ADA and local
remedies could proceed in such a case.
     Labor-management agreements cannot stand in conflict with the
requirements of the ADA and this rule.  For example, if a
labor-management agreement provides that vehicle drivers are not
required to provide assistance to persons with disabilities in a
situation in which this rule requires such assistance, then the
assistance must be provided notwithstanding the agreement.  Labor
and management do not have the authority to agree to violate
requirements of Federal law.

  37.13   Effective date for certain vehicle lift specifications.

     This section contains an explicit statement of the effective
date for vehicle lift platform specifications.  The Department has
decided to apply the new 30" by 48" lift platform specifications to
solicitations after January 25, 1992.  As in the October 4, 1990,
rule implementing the acquisition requirements; the date of a
solicitation is deemed to be the closing date for the submission of
bids or offers in a procurement.

Subpart B - Applicability

37.21  Applicability. - General

     This section emphasizes the broad applicability of Part 37. 
Unlike section 504, the ADA and its implementing rules apply to
entities whether or not they receive Federal financial assistance. 
They apply to private and public entities alike.  For entities
which do receive Federal funds, compliance with the ADA and Part 37
is a condition of compliance with section 504 and 49 CFR Part 27,
DOT's section 504 rule.
     Virtually all entities covered by this rule also are covered
by DOJ rules, either under 28 CFR Part 36 as state and local
program providers or under 28 CFR Part 35 as operators of places of
public accommodation.  Both sets of rules apply; one does not
override the other.  The DOT rules apply only to the entity's
transportation facilities, vehicles, or services; the DOJ rules may
cover the entity's activities more broadly.  For example, if a
public entity operates a transit system and a zoo, DOT's coverage
would stop at the transit system's edge, while DOJ's rule would
cover the zoo as well.
     DOT and DOJ have coordinated their rules, and the rules have
been drafted to be consistent with one another.  Should, in the
context of some future situation, there be an apparent
inconsistency between the two rules, the DOT rule would control
within the sphere of transportation services, facilities and
vehicles.

37. 23  Service Under Contract.

     This section requires private entities to "stand in the shoes"
of public entities with whom they contract to provide
transportation services.  It ensures that, while a public entity
may contract out its service, it may not contract away its ADA
responsibilities.  The requirement applies primarily vehicle
acquisition requirements and to service provision requirements.  If
a public entity wishes to acquire vehicles for use on a commuter
route, for example, it must acquire accessible vehicles.
    It may acquire accessible over-the-road buses, it may acquire
accessible full-size transit buses, it may acquire accessible
smaller buses, or it may acquire accessible vans.  It does not
matter what kind of vehicles it acquires, so long as they are
accessible.  On the other hand, if the public entity wants to use
inaccessible buses in its existing fleet for the commuter service,
it may do so.  All replacement vehicles acquired in the future
must, of course, be accessible.
     Under this provision, a private entity which contracts to
provide this commuter service stands in the shoes of the public
entity and is subject to precisely the same requirements (it is not
required to do more than the public entity).  If the private entity
acquires vehicles used to provide the service, the vehicles must be
accessible.  If it cannot, or chooses not to, acquire an accessible
vehicle of one type, it can acquire an accessible vehicle of
another type.   Like the public entity, it can provide the service
with inaccessible vehicles in its existing fleet.
     The import of the provision is that it requires a private
entity contracting to provide transportation service to a public
entity to follow the rules applicable to the public entity.  For
the time being, a private entity operating in its own right can
purchase a new over-the-road bus inaccessible to individuals who
use wheelchairs.   When that private entity operates service under
contract to the public entity, however, it is just as obligated as
the public entity itself to purchase an accessible bus for use in
that service, whether or not it is an over-the-road bus.
     The "stand in the shoes" requirement applies not only to
vehicles acquired by private entities explicitly under terms of an
executed contract to provide service to a public entity, but also
to vehicles acquired "in contemplation of use" for service under
such a contract.  This language is included to ensure good faith
compliance with accessibility requirements for vehicles acquired
before the execution of a contract.  Whether a particular
acquisition is in contemplation of use on a contract will be
determined on a case-by-case basis.  However, acquiring a vehicle
a short time before a contract is executed and then using it for
the contracted service is a indication that the vehicle was
acquired in contemplation of use on the contract, as is acquiring
a vehicle obstensibly for other service provided by the entity and
then regularly rotating it into service under the contract. 
     The "stand in the shoes" requirement is applicable only to the
vehicles and service (public entity service requirements, like
37.163, apply to a private entity in these situations) provided
under contract to a public entity.  Public entity requirements
clearly do not apply to all phases of a private entity's
operations, just because it has a contract with a public entity. 
For example, a private bus company, if purchasing buses for service
under contract to a public entity, must purchase accessible buses. 
The same company, to the extent permitted by the private entity
provisions of this Part, may purchase inaccessible vehicles for its
tour bus operations.
     The Department also notes that the "stands in the shoes"
requirement may differ depending on the kind of service
involved.The public entity's "shoes" are shaped differently, for
example, depending on whether the public entity is providing fixed
route or demand responsive service to the general public.  In the
case of demand responsive service, a public entity is not required
to buy an accessible vehicle if its demand responsive system, when
viewed in its entirety, provides service to individuals with
disabilities equivalent to its service to other persons.  A private
contractor providing a portion of this paratransit service would
not necessarily have to acquire an accessible vehicle if this
equivalency test is being met by the system as a whole.  
Similarly, a public entity can, after going through a "good faith
efforts" search, acquire inaccessible buses.  A private entity
under contract to the public can do the same.  "Stand in the shoes"
may also mean that, under some circumstances, a private contractor
need not acquire accessible vehicles.  If a private company
contracts with a public school district to provide school bus
service, it is covered, for that purpose, by the exemption for
public school transportation.
     In addition, the requirement that a private entity play by the
rules applicable to a public entity can apply in situations
involving an "arrangement or other relationship" with a public
entity other than the traditional contract for service.  For
example, a private utility company that operates what is, in
essense, a regular fixed route public transportation system for a
city, and which receives section 3 or 9 funds from UMTA via an
agreement with a state or local government agency, would fall under
the provisions of this section.  The provider would have to comply
with the vehicle acquisition, paratransit, and service requirements
that would apply to the public entity through which it receives the
UMTA funds, if that public entity operated the system itself.  The
Department would not, however, construe this section to apply to
situations in which the degree of UMTA funding and state and local
agency involvement is considerably less, or in which the system of
transportation involved is not a de facto  surrogate for a
traditional public entity fixed route transit system serving a city
(e.g., a private non-profit social service agency which receives
UMTA section 16(b)(2) funds to purchase a vehicle).
     This section also requires that a public entity not diminish
the percentage of accessible vehicles in its fleet through
contracting.For example, suppose a public entity has 100 buses in
its fleet, of which 20 are accessible, meaning that 20 percent of
its fleet is accessible.  The entity decides to add a fixed route,
for which a contractor is engaged.  The contractor is supplying ten
of its existing inaccessible buses for the fixed route.  To
maintain the 20 percent accessibility ratio, there would have to be
22 accessible buses out of the 110 buses now in operation in
carrying out the public entity's service.  The public entity could
maintain its 20 percent level of accessibility through any one or
more of a number of means, such as having the contractor to provide
two accessible buses, retrofitting two of its own existing buses,
or accelerating replacement of two of its own inaccessible buses
with accessible buses.
     This rule applies the "stand in the shoes" principle to
transactions wholly among private entities as well.  For example,
suppose a taxi company (a private entity primarily engaged in the
business of transporting people) contracts with a hotel to provide
airport shuttle van service.  With respect to that service, the
taxi company would be subject to the requirements for private
entities not primarily in the business of transporting people,
since it would be "standing in the shoes" of the hotel for that
purpose.

37.25  University Transportation Systems.

     Private university-operated transportation systems are subject
to the requirements of this rule for private entities not primarily
engaged in the business of transporting people. With one important
exception, public university-operated transportation systems are
subject to the requirements of the rule for public entities.  The
nature of the systems involved -- demand-responsive or fixed route
-- determines the precise requirements involved.
     For public university fixed route systems, public entity
requirements apply.   In the case of fixed route systems, the
requirements for commuter bus service would govern.  This has the
effect of requiring the acquisition of accessible vehicles and
compliance with most other provisions of the rule, but does not
require the provision of complementary paratransit or submitting a
paratransit plan.  As a result, private and public universities
will have very similar obligations under the rule.

37.27  Transportation for Elementary and Secondary Education
Systems.

     This section restates the statutory exemption from public
entity requirements given to public school transportation.  This
extension also applies to transportation of pre-school children to
Head Start or special education programs which receive Federal
assistance.  It also applies to arrangements permitting pre-school
children of school bus drivers to rule a school bus or allowing
teenage mothers to be transported to day care facilities at a
school or along a school bus rout so that there mothers may
continue to attend school (see H. Rept. 101-485, pt. 1 at 27).  The
situation for private schools is more complex.  According to the
provision, a private elementary or secondary school's
transportation system is exempt from coverage under this rule if
all three of the following conditions are met: (1) the school
receives Federal financial assistance; (2) the school is subject to
section 504; and (3) the school's transportation system provides
transportation services to individuals with disabilities, including
wheelchair users, equivalent to those provided to individuals
without disabilities.  The test of equivalency is the same as that
for other private entities, and is described under 37.105.  If the
school does not meet all these criteria, then it is subject to the
requirements of Part 37 for private entities not primarily engaged
in the business of transporting people.
     The Department notes that, given the constitutional law on
church-state separation, it is likely that church-affiliated
private schools do not receive Federal financial assistance.  To
the extent that these schools' transportation systems are operated
by religious entities or entities controlled by religious
organizations, they are not subject to the ADA at all, so this
section does not apply to them.

37.29  Private providers of taxi service.

     This section first recites that providers of taxi service are
private entities primarily engaged in the business of transporting
people which provide demand responsive service.  For purposes of
this section, other transportation services that involve calling
for a car and a driver to take one places (e.g., limousine
services, of the kind that provide luxury cars and chauffeurs for
senior proms and analogous adult events) are regarded as taxi
services.
     Under the ADA, no private entity is required to purchase an
accessible automobile.  If a taxi company purchases a larger
vehicle, like a van, it is subject to the same rules as any other
private entity primarily engaged in the business of transporting
people which operates a demand responsive service.  That is, unless
it is already providing equivalent service, any van it acquires
must be accessible.  Equivalent service is measured according to
the criteria of 37.105.Taxi companies are not required to acquire
vehicles other than automobiles to add accessible vehicles to their
fleets.
     Taxi companies are subject to nondiscrimination obligations. 
These obligations mean, first, that a taxi service may not deny a
ride to an individual with a disability who is capable of using the
taxi vehicles.  It would be discrimination to pass up a passenger
because he or she was blind or used a wheelchair, if the wheelchair
was one that could be stowed in the cab and the passenger could
transfer to a vehicle seat.  Nor could a taxi company insist that
a wheelchair user wait for a lift-equipped van if the person could
use an automobile.
     It would be discrimination for a driver to refuse to assist
with stowing a wheelchair in the trunk (since taxi drivers
routinely assist passengers with stowing luggage).  It would be
discrimination to charge a higher fee or fare for carrying a person
with a disability than for carrying a non-disabled passenger, or a
higher fee for stowing a wheelchair than for stowing a suitcase. 
(Charging the same fee for stowing a wheelchair as for stowing a
suitcase would be proper, however.)  The fact that it may take
somewhat more time and effort to serve a person with a disability
than another passenger does not justify discriminatory conduct with
respect to passengers with disabilities.
     State or local governments may run user-side subsidy
arrangements for the general public (e.g., taxi voucher systems for
senior citizens or low-income persons).  Under the DOJ Title II
rule, these programs would have to meet "program accessibility"
requirements, which probably would require that accessible
transportation be made available to senior citizens or low-income
persons with disabilities.  This would not directly require private
taxi providers who accept the vouchers to purchase accessible
vehicles beyond the requirements of this rule, however.

37.31  Vanpools.

     This provision applies to public vanpool systems the
requirements for public entities operating demand responsive
systems for the general public.  A public vanpool system is one
operated by a public entity, or in which a public entity owns or
purchases or leases the vehicles.  Lesser degrees of public
involvement with an otherwise private ridesharing arrangement
(e.g., provision of parking spaces, HOV lanes, coordination or
clearinghouse services) do not convert a private into a public
system.
     The requirement for a public vanpool system is that it
purchase or lease an accessible vehicle unless it can demonstrate
that it provides equivalent service to individuals with
disabilities, including individuals who use wheelchairs, as it
provides to individuals without disabilities.  For a public vanpool
system, the equivalency requirement would be met if an accessible
vehicle is made available to and used by a vanpool when an
individual with a disability needs such a vehicle to participate. 
Public vanpool systems may meet this requirement through obtaining
a percentage of accessible vehicles that is reasonable in light of
demand for them by participants, but this is not required, so long
as the entity can respond promptly to requests for participation in
a vanpool with the provision of an accessible van when needed.   
There is no requirement for private vanpols, defined as a voluntary
arrangement in which the driver is compensated only for expenses.

37.33  Airport Transportation Systems.

     Fixed route transportation systems operated by public airports
are regarded by this section as fixed route commuter bus systems. 
As such, shuttles among terminals and parking lots, connector
systems among the airport and a limited number of other local
destinations must acquire accessible buses, but are not subject to
complementary paratransit requirements.  (If a public airport
operates a demand responsive system for the general public, it
would be subject to the rules for demand responsive systems for the
general public.)
     It should be noted that this section applies only to
transportation services that are operated by public airports
themselves (or by private contractors who stand in their shoes). 
When a regular urban mass transit system serves the airport, the
airport is simply one portion of its service area, treated for
purposes of this rule like the rest of its service area.    
Virtually all airports are served by taxi companies, who are
subject to 37.29 at airports as elsewhere.  In addition, many
airports are served by jitney or shuttle systems.  Typically, these
systems operate in a route-deviation or similar variable mode in
which there are passenger-initiated decisions concerning
destinations.  We view such systems as demand responsive
transportation operated by private entities primarily engaged in
the business of transporting people.
     Since many of these operators are small businesses, it may be
difficult for them to meet equivalency requirements on their own
without eventually having all or nearly all accessible vehicles,
which could pose economic problems.  One suggested solution to this
problem is for the operators serving a given airport to form a pool
or consortium arrangement, in which a number of shared accessible
vehicles would meet the transportations of individuals with
disabilities.  As in other forms of transportation, such an
arrangement would have to provide service in a nondiscriminatory
way (e.g., in an integrated setting, no higher fares for accessible
service).

37.35  Supplemental Service for Other Transportation Modes.

     This section applies to a number of situations in which an
operator of another transportation mode uses bus or other service
to connect its service with limited other points.
     One instance is when an intercity railroad route is set up
such that the train stops outside the major urban center which is
the actual destination for many passengers.  Examples mentioned to
us include bus service run by Amtrak from a stop in Columbus,
Wisconsin, to downtown Madison, or from San Jose to San
Francisco.Such service is fixed route, from the train station to a
few points in the metropolitan area, with a schedule keyed to the
train schedule.  It would be regarded as commuter bus service,
meaning that accessible vehicles would have to be acquired but
complementary paratransit was not required.  Another instance is
one in which a commuter rail operator uses fixed route bus service
as a dedicated connection to, or extension of, its rail service. 
The service may go to park and ride lots or other destinations
beyond the vicinity of the rail line.  Again, this service shares
the characteristics of commuter bus service that might be used even
if the rail line were not present, and does not attempt to be a
comprehensive mass transit bus service for the area.
     Of course, there may be instances in which a rail operator
uses demand responsive instead of fixed route service for a purpose
of this kind.  In that case, the demand responsive system
requirements of the rule would apply.
     Private entities (i.e., those operating places of public
accommodation) may operate similar systems, as when a cruise ship
operator provides a shuttle or connector between an airport and the
dock.  This service is covered by the rules governing private
entities not primarily engaged in the business of transporting
people.  Fixed route or demand responsive rules apply, depending on
the characteristics of the system involved.
     One situation not explicitly covered in this section concerns
ad hoc  transportation arranged, for instance, by a rail operator
when the train does not wind up at its intended destination.  For
example, an Amtrak train bound for Philadelphia may he halted at
Wilmington by a track blockage between the two cities.  Usually,
the carrier responds by providing bus service to the scheduled
destination or to the next point where rail service can resume.  
     The service that the carrier provides in this situation is
essentially a continuation by other means of its primary service. 
We view the obligation of the rail operator as being to ensure that
all passengers, including individuals with disabilities, are
provided service to the destination in a nondiscriminatory manner. 
This includes, for instance, providing service in the most
integrated setting appropriate to the needs of the individual and
service that gets a passenger with a disability to the destination
as soon as other passengers.  

37.37  Other Applications.

     The ADA specifically defines "public entity."  Anything else
is a "private entity."  The statute does not include in this
definition a private entity that receives a subsidy or franchise
from a state or local government or is regulated by a public
entity.  Only through the definition of "operates" (see discussion
of 37.23) do private entities' relationships to public entities
subject private entities to the requirements for public entities. 
 Consequently, in deciding which provisions of the rule to apply to
an entity in other than situations covered by 37.23, the nature of
the entity - public or private - is determinative.          
Transportation service provided by public accommodations is viewed
as being provided by private entities not primarily engaged in the
business of transporting people.  Either the provisions of this
Part applicable to demand responsive or fixed route systems apply,
depending on the nature of a specific system at a specific
location.  The distinction between fixed route and demand
responsive systems is discussed in connection with the definitions
section above. It is the responsibility of each private entity, in
the first instance, to assess the nature of each transportation
system on a case-by-case basis and determine the applicable rules. 
     On the other hand, conveyances used for recreational purposes,
such as amusement park rides, ski lifts, or historic rail cars or
trolleys operated in museum settings, are not viewed as
transportation under this rule at all.  Other conveyances may fit
into this category as well.
     The criterion for determining what requirements apply is
whether the conveyances are primarily an aspect of the recreational
experience itself or a means of getting from Point A to Point B. 
At a theme park, for instance, a large roller coaster (though a
"train" of cars on a track) is a public accommodation not subject
to this rule; the tram that transports the paying customers around
the park, with a stop at the roller coaster, is a transportation
system subject to the "private, not primarily" provisions of this
Part.
     Employer-provided transportation for employees is not covered
by this Part, but by EEOC rules under Title I of the ADA.  (Public
entities are also subject to DOJ's Title II rules with respect to
employment.)  This exclusion from Part 37 applies to transportation
services provided by an employer (whether access to motor pool
vehicles, parking shuttles, employer-sponsored van pools) that is
made available solely to its own employees.  If an employer
provides service to its own employees and other persons, such as
workers of other employers or customers, it would be subject to the
requirements of this Part for private entities not primarily
engaged in the business of transporting people.or public entities,
as applicable.
     The rule looks to the private entity actually providing the
transportation service in question in determining whether the
"private, primarily" or "private, not primarily" rules apply.  For
example, Conglomerate, Inc., owns a variety of agribusiness,
petrochemical, weapons system production, and fast food
corporations.  One of its many subsidiaries, Green Tours, Inc.,
provides charter bus service for people who want to view National
Parks, old-growth forests, and other environmentally significant
places.  It is probably impossible to say in what business
Conglomerate, Inc. is primarily engaged, but it clearly is not
transporting people.  Green Tours, Inc., on the other hand, is
clearly primarily engaged in the business of transporting people,
and the rule treats it as such.
     On the other hand, when operating a transportation service off
to the side of to the main business of a public accommodation
(e.g., a hotel shuttle), the entity as a whole would be considered. 
Even if some dedicated employees are used to provide the service,
shuttles and other systems provided as a means of getting to, from,
or around a public accommodation remain solidly in the "private,
not primarily" category.

  Subpart C - Transportation Facilities

37.41 Construction of transportation facilities by public
entities.      Section 37.41 contains the general requirement that
all new facilities constructed after January 25, 1992, be
accessible to and usable by individuals with disabilities.  This
provision tracks the statute closely, and is analogous to a
provision in the DOJ regulations for private entities.  Section 226
of the ADA provides little discretion in this requirement.
     The requirement is keyed to construction which "begins" after
January 25, 1992.  The regulation defines "begin" to mean when a
notice to proceed order has been issued.  This term has a standard
meaning in the construction industry, as an instruction to the
contractor to proceed with the work.
     Questions have been raised concerning which standards apply
before January 26, 1992.  There are Federal requirements that apply
to all recipients of federal money, depending on the circumstances.
     First, if an entity is a Federal recipient and uses Federal
dollars to construct the facility, regulations implementing section
504 of the Rehabilitation Act of 1973 (29 U.S.C. 794), require the
recipient to comply with the Uniform Federal Accessibility
Standards.
     Second, since the Civil Rights Restoration Act of 1987 (Pub.
L. 100-259), an operation of a recipient of federal funds would
also have to comply with section 504, even though the activity was
not paid for with Federal funds.  Thus, the Uniform Federal
Accessibility Standards would apply to this construction as well.
     As mentioned above, the Department intends, in the period
before January 26, 1991, to view compliance with section 504 in
light of compliance with ADA requirements (this point applies to
alterations as well as new construction).  Consequently, in
reviewing requests for grants, contract approvals, exemptions, etc, 
(whether with respect to ongoing projects or new, experimental, or
one-time efforts), the Department will, as a policy matter, seek to
ensure compliance with ADA standards.

37.43 Alteration of Transportation Facilities by Public Entities. 

     This section sets out the accessibility requirements that
apply when a public entity undertakes an alteration of an existing
facility.  In general, the section requires that any alteration, to
the maximum extent feasible, results in the altered area being
accessible to and usable by individuals with disabilities,
including persons who use wheelchairs.  The provisions follow
closely those adopted by the DOJ, in its regulations implementing
title III of the ADA.
     The section requires specific activities whenever an
alteration of an existing facility is undertaken.
     First, if the alteration is made to a primary function area,
(or access to an area containing a primary function), the entity
shall make the alteration in such a way as to ensure that the path
of travel to the altered area and the restrooms, telephones and
drinking fountains servicing the altered area are readily
accessible to and usable by individuals with disabilities,
including individuals who use wheelchairs.
     Second, alterations to drinking fountains, telephones, and
restrooms do not have to be completed if the cost and scope of
making them accessible is disproportionate.
     Third, the requirement goes into effect for alterations begun
after January 25, 1992. 
      Fourth, the term "maximum extent feasible" means that all
changes that are possible must be made.  The requirement to make
changes to the maximum extent feasible derives from clear
legislative history.  The Senate Report states  --     

The phrase "to the maximum extent feasible" has been included to
allow for the occasional case in which the nature of an existing
facility is such as to make it virtually impossible to renovate the
building in a manner that results in its being entirely accessible
to and usable by individuals with disabilities.  In all such cases,
however, the alteration should provide the maximum amount of
physical accessibility feasible.
     Thus, for example the term "to the maximum extent feasible"
should be construed as not requiring entities to make building
alterations that have little likelihood of being accomplished
without removing or altering a load-bearing structural member
unless the load-bearing structural member is otherwise being
removed or altered as part of the alteration. (S.Rept. 101-116, at
68)
     Fifth, primary function means a major activity for which the
facility is intended.  Primary function areas include waiting
areas, ticket purchase and collection areas, train or bus
platforms, baggage checking and return areas, and employment areas
(with some exceptions stated in the rule, for areas used by service
personnel that are very difficult to access).
     Sixth, "path of travel" means a continuous, unobstructed way
of pedestrian passage by means of which the altered area may be
approached, entered, and exited, and which connects the altered
area with an exterior approach and includes restrooms, telephones,
and drinking fountains serving the altered area.  If changes to the
path of travel are disproportionate, then only those changes which
are not disproportionate are to be completed.
     Seven, the final rule specifies that costs exceeding 20
percent would be disproportionate.  This is consistent with the
DOJ.  In determining costs, the Department intends costs to be
based on changes to the passenger service area that is scheduled
for alteration.
     Finally, the Department has defined the term "begin", in the
context of begin an alteration that is subject to the alteration
provision to mean when a notice to proceed or work order is issued. 
Two terms are used (instead of only notice to proceed in the
context of new construction) because many alterations may be
carried out by the entity itself, in which case the only triggering
event would be a work order or similar authorization to begin.
     In looking at facility concepts like "disproportionality" and
"to the maximum extent feasible," the Department will consider any
expenses related to accessibility for passengers.  It is not
relevant to consider non-passenger related improvements (e.g.,
installing a new track bed) or to permit "gold-plating"
(attributing to accessibility costs the expense of non-related
improvements, such as charging to accessibility costs the price of
a whole new door, when only adding a new handle to the old door was
needed for accessibility).37.47   Key Stations in Light and Rapid
Rail Systems

37.51   Key Stations in Commuter Rail Systems.

     These sections require that key stations in light, rapid, and
commuter rail systems be made accessible as soon as practicable,
but no later than July 26, 1993.  Being made accessible, for this
purpose, means complying with the applicable provisions of Appendix
A to this Part.  "As soon as practicable" means that, if
modifications can be made before July 26, 1993, they must be.  A
rail operator that failed to make a station accessible by July 1993
would be in noncompliance with the ADA and this rule, except in a
case where an extension of time had been granted.
     What is a key station?  A key station is one designated as
such by the commuter authority or light/rapid rail operator,
through the planning process and public participation process set
forth in this section.  The five criteria listed in the regulation
are intended to guide the selection process but, while the entity
must take these criteria into account (and this consideration must
be reflected in the planning process and documents), they are not
mandatory selection standards.  That is, it is not required that
every station that meets one of the criteria be designated as a key
station.  Since the criteria are not mandatory selection standards,
the understanding of their terms is also a matter appropriately
left to the planning process.  A tight, legalistic definition is
not necessary in the context of factors intended for consideration. 
For instance, what constitutes a major activity center or how close
a station needs to be to another station to not be designated as
key depend largely on local factors that it would not be reasonable
to specify in this rule.
     Given the wide discretion permitted to rail operators in
identifying key stations, there would be no objection to
identifying as a key station a new (presumably accessible) station
now under construction.  Doing so would involve consideration of
the key station criteria and would be subject to the
planning/public participation process.
     If an extension to a rail system (e.g., a commuter system) is
made, such that the system comes to include existing inaccessible
stations that have not previously been part of the system, the
Department construes the ADA to require application of key station
accessibility in such a situation.  The same would be true for a
new start commuter rail system that began operations using existing
stations.  Key station planning, designation of key stations, and
with  consistent with the ADA would be required.  The Department
would work with the commuter authority involved on a case-by-case
basis to determine applicable time limits for accessibility,
consistent with the time frames of the ADA.
     The entity must develop a compliance plan, subject to the
public participation and planning process set forth in paragraph
(d) of each of these sections.  Note that this plan must be
completed by July 26, 1992, not January 26, 1992, as in the case of
paratransit plans.  The key station plans must be submitted to UMTA
at that time.  (The statute does not require UMTA approval of the
plans, however.).   A rail operator may request an extension of the
July 1993 completion deadline for accessibility modifications to
one or more key stations.  The extension for light and rapid rail
stations can be up to July 2020, though two thirds of the key
stations (per the legislative history of the statute, selected in
a way to maximize accessibility to the whole system) must be
accessible by July 2010.Commuter rail stations can be extended up
to July 2010.
     Requests for extension of time must be submitted by July 26,
1992.  UMTA will review the requests on a station-by-station basis
according to the statutory criterion, which is whether making the
station accessible requires extraordinarily expensive alterations. 
An extraordinarily expensive alteration is raising the entire
platform, installing an elevator, or making another alteration of
similar cost and magnitude.  If another means of making a station
accessible (e.g., installation of a mini-high platform in a station
where it is not necessary to install an elevator for to provide
access to the platform for wheelchair users), then an extension can
be granted only if the rail operator shows that the cost and
magnitude of the alteration is similar in to that of an elevator
installation or platform raising.
     The rule does not include a specific deadline for UMTA
consideration of an extension request.  However, since we are aware
that, in the absence of an extension request, accessibility must be
completed by July 1993, we will endeavor to complete review of
plans as soon as possible, to give as much lead time as possible to
local planning and implementation efforts.
     Once an extension is granted, the extension applies to all
accessibility modifications in the station.  However, the rail
operator should not delay non-extraordinarily expensive
modifications to the station.  The key station plan and any
extension request should include a schedule for phasing in
non-extraordinarily expensive modifications to the station.  For
example, even if a key station is not going to be accessible to
wheelchair users for 15 years, pending the installation of an
elevator, the rail operator can improve its accessibility to
persons with visual impairments by installing tactile strips.
     An extension cannot be granted except for a particular station
which needs an extraordinarily expensive modification.  An
extension cannot be granted non-extraordinarily expensive changes
to Station B because the extraordinarily expensive changes to
Station A will absorb many resources.  Non-extraordinarily
expensive changes, however costly considered collectively for a
system, are not, under the statute, grounds for granting an
extension to one or more stations or the whole system.  Only
particular stations where an extraordinarily expensive modification
must be made qualify for extensions.
     The UMTA Administrator can approve, modify, or disapprove any
request for an extension.  For example, it is not a forgone
conclusion that a situation for which an extension is granted will
have the maximum possible extension granted.  If it appears that
the rail operator can make some stations accessible sooner, UMTA
can grant an extension for a shorter period (e.g., 2005 for a
particular station rather than 2010).

37.49  Designation of Responsible Person(s) for Intercity and
Commuter Rail Stations.

     This section sets forth a mechanism for determining who bears
the legal and financial responsibility for accessibility
modifications to a commuter and/or intercity rail station.  The
final provision of the section is the most important.  It
authorizes all concerned parties to come to their own agreement
concerning the allocation of responsibility.  Such an agreement can
allocate responsibility in any way acceptable to the parties.  The
Department strongly encourages parties to come to such an
agreement.
     In the absence of such an agreement, a statutory/regulatory
scheme allocates responsibility.  In the first, and simplest,
situation posed by the statute, a single public entity owns more
than 50 percent of the station.  In this case, the public entity is
the responsible person and nobody else is required to bear any of
the responsibility. In the second situation, a private entity owns
more than 50 percent of the station.  The private entity need not
bear any of the responsibility for making the station accessible. 
A public entity owner of the station, who does not operate
passenger railroad service through the station, is not required to
bear any of the responsibility for making the station accessible. 
The total responsibility is divided between passenger railroads
operating service through the station, on the basis of respective
passenger boardings.  If there is only one railroad operating
service through the station, it bears the total responsibility.
     The Department believes that reference to passenger boardings
is the most equitable way of dividing responsibility among
railroads, since the number of people drawn to the station by each
is likely to reflect "cost causation" quite closely.  The
Department notes, however, that, as passenger boarding percentages
change over time, the portion of responsibility assigned to each
party also may change.  Station modifications may involve long-term
capital investment and planning, while passenger boarding
percentages are more volatile.  Some railroads may stop serving a
station, while others may begin service, during the period of time
before modifications to the station are complete.  To help
accommodate such situations,  the rule refers to passenger
boardings "over the entire period during which the station is made
accessible." 
     This language is intended to emphasize that as circumstances
change, the parties involved have the responsibility to adjust
their arrangements for cost sharing.  For example, suppose Railroad
A has 30 percent of the passenger boardings in year 1, but by year
10 has 60 percent of the boardings.  It would not be fair for
Railroad A to pay only 30 percent of the costs of station
modifications occurring in later years.  Ultimately, the total cost
burden for modifying the station over (for example) 20 years would
be allocated on the share of the total number of boardings
attributable to each railroad over the whole 20 year period, in
order to avoid such unfairness.    The third, and most complicated,
situation is one in which no party owns 50 percent of the station. 
For example, consider the following hypothetical situation:Party 
Ownership %    Boardings %Private freight RR              40      
            0City                30                   0Amtrak     
            0               25Commuter A                  30      
           50Commuter B                0                  25
     The private freight railroad drops out of the calculation of
who is responsible.  All of the responsibility would be allocated
among four public entities:  the city (a public entity who does not
operate railroad service), Amtrak, and the two commuter railroads. 
Half the responsibility would go to public entity owners of the
station (whether or not they are railroads who run passenger
service through the station).  The other half of the responsibility
would go to railroads who run passenger service through the station
(whether or not they are station owners).
     On the ownership side of the equation, the city and Commuter
A each own half of that portion of the station that is not owned by
the private freight railroad.  Therefore, the two parties divide up
the ownership half of the responsibility equally.  Based on their
ownership interest, each of these two parties  bears 25 percent of
the responsibility for the entire station.  Note that, should
ownership percentages or owners change over the period during which
the station is to be made accessible, these percentages may change. 
It is ownership percentage over this entire period that ultimately
determines the percentage of responsibility.
     On the passenger rail operations side of the equation, 50
percent of passenger boardings are attributable to Commuter A and
25 percent each to Commuter B and Amtrak.  Therefore, half of this
portion of the responsibility belongs to Commuter A, while a
quarter share each goes to the other railroads.  This means that,
based on passenger boardings, 25 percent of the responsibility goes
to Commuter A, 12.5 percent to Commuter B, and 12.5 percent to
Amtrak.  Again, it is the proportion of passenger boardings over
the entire length of the period during which the station is made
accessible that ultimately determines the percentage of
responsibility.
     In this hypothetical, Commuter A is responsible for a total of
50 percent of the responsibility for the station.  Commuter A is
responsible for 25 percent of the responsibility because of its
role as a station owner and another 25 percent because of its
operation of passenger rail service through the station.
     The Department recognizes that there will be situations in
which application of this scheme will be difficult (e.g., involving
problems with multiple owners of a station whose ownership
percentages may be difficult to ascertain).  The Department again
emphasizes that agreement among the parties is the best way of
resolving these problems, but we are willing to work with the
parties to ensure a solution consistent with this rule.

37.53  Exception for New York and Philadelphia

     Consistent with the legislative history of the ADA, this
section formally recognizes the selection of key stations in two
identified litigation settlement agreements in New York and
Philadelphia as in compliance with the ADA.  Consequently, the
entities involved can limit their key station planning process to
issues concerning the timing of key station accessibility.  The
section references also 37.9, which provides that key station
accessibility alterations which have already been made, or which
are begun before January 26, 1992, and which conform to specified
prior standards, do not have to be re-modified.  On the other hand,
alterations begun after January 25, 1992 (including forthcoming key
station modifications under the New York and Philadelphia
agreements), must meet the requirements of Appendix A to this Part.
     This is an exception only for the two specified agreements. 
There are no situations in which other cities can take advantage of
this provision.  Nor are the provisions of the two agreements
normative for other cities.  Other cities must do their own
planning, with involvement from local citizens, and cannot rely on
agreements unique to New York and Philadelphia to determine the
appropriate number or percentage of key stations or other
matters.  

37.57  Required cooperation. 

This section implements 242(e)(2)(C) of the ADA, which treats as
discrimination a failure, by an owner or person in control of an
intercity rail station, to provide reasonable cooperation to the
responsible persons' efforts to comply with accessibility
requirements.  For example, the imposition by the owner of an
unreasonable insurance bond from the responsible person as a
condition of making accessibility modifications would violate this
requirement.  See  H. Rept. 101-485 at 53. 
     The statute also provides that failure of the owner or person
in control to cooperate does not create a defense to a
discrimination suit against the responsible person, but the
responsible person would have a third party action against the
uncooperative owner or person in control.  The rule does not
restate this portion of the statute in the regulation, since it
would be implemented by the courts if such an action is brought.  
Since cooperation is also a regulatory requirement, however, the
Department could entertain a section 504 complaint against a
recipient of Federal funds who failed to cooperate.
     The House Energy and Commerce Committee provided as an example
of an action under this provision a situation in which a failure to
cooperate leads to a construction delay, which in turn leads to a
lawsuit by an individual with disabilities against the responsible
person for missing an accessibility deadline.  The responsible
person could not use the lack of cooperation as a defense in the
lawsuit, but the uncooperative party could be made to indemnify the
responsible for damages awarded the plaintiff.  Also, a responsible
person could obtain an injunction to force the recalcitrant owner
or controller of the station to permit accessibility work to
proceed.  (Id.)
     This provision does not appear to be intended to permit a
responsible person to seek contribution for a portion of the cost
of accessibility work from a party involved with the station whom
the statute and 37.49 do not identify as a responsible person.  It
simply provides a remedy for a situation in which someone impedes
the responsible person's efforts to comply with accessibility
obligations.   

37.59  Differences in Accessibility Completion Date Requirements

     Portions of the same station may have different accessibility
completion date requirements, both as the result of different
statutory time frames for different kinds of stations and
individual decisions made on requests for extension.  The principle
at work in responding to such situations is that if part of a
station may be made accessible after another part, the "late" part
of the work should not get in the way of people's use of
modifications resulting from the "early" part.
     For example, the commuter part of a station may have to be
made accessible by July 1993 (e.g., there is no need to install an
elevator, and platform accessibility can be achieved by use of a
relatively inexpensive mini-high platform).  The Amtrak portion of
the same station, by statute, is required to be accessible as soon
as practicable, but no later than July 2010.  If there is a common
entrance to the station, that commuter rail passengers and Amtrak
passengers both use, or a common ticket counter, it would have to
be accessible by July 1993. If there were a waiting room used by
Amtrak passengers but not commuter passengers (who typically stand
and wait on the platform at this station), it would not have to be
accessible by July 1993, but if the path from the common entrance
to the commuter platform went through the waiting room, the path
would have to be an accessible path by July 1993.  

37.61 Public Transportation Programs and Activities in Existing
Facilities

     This section implements section 228(a) of the ADA and
establishes the general requirement for entities to operate their
transportation facilities in a manner that, when viewed in its
entirety, are accessible to and usable by individuals with
disabilities.  The section clearly excludes from this requirement
access by persons in wheelchairs, unless these changes would be
necessitated by the alterations or key station provisions.  This
provision is intended to cover activities and programs of an entity
that do not rise to the level of alteration.  Even if an entity is
not making alterations to a facility, it has a responsibility to
conduct its program in an accessible manner.   Examples of possible
activities include user friendly farecards, schedules, of edge
detection on rail platforms, adequate lighting, telecommunication
display devices (TDDs) or text telephones, and other accommodations
for use by persons with speech and hearing impairments, signage for
people with visual impairments, continuous pathways for persons
with visual and ambulatory impairments, and public address systems
and clocks.
     The Department did not prescribe one list of things that would
be appropriate for all stations.  For example, we believe that
tactile strips are a valuable addition to platforms which have
drop-offs.  We also believe that most larger systems, to the extent
they publish schedules, should make those schedules readily
available in alternative formats.  We encourage entities to find
this another area which benefits from its commitment to
far-reaching public participation efforts. 

   Subpart D - Acquisition of Accessible Vehicles by Public
Entities

37.71  Purchase or lease of new non-rail vehicles by public
entities operating fixed route systems.

     This section sets out the basic acquisition requirements for
a public entity purchasing a new vehicle.  Generally, the section
requires any public entity who purchases or leases a new vehicle to
acquire an accessible vehicle.  There is a waiver provision if
lifts are unavailable and these provisions track the conditions in
the ADA.  One statutory condition, that the public entity has made
a good faith effort to locate a qualified manufacturer to supply
the lifts, presumes a direct relationship between the transit
provider and the lift manufacturer.  In fact, it is the bus
manufacturer, rather than the transit provider directly, who would
have the task of looking for a supplier of lifts to meet the
transit provider's specifications.  The task must still be
performed, but the regulation does not require the transit provider
to obtain actual information about available lifts.  Rather the bus
manufacturer obtains the information and provides this assurance to
the entity applying for the waiver, and the entity may rely on this
representation. More specifically, the regulation requires that
each waiver request must include a copy of the written solicitation
(showing that it requested lift-equipped vehicles) and written
responses from lift manufacturers to the vehicle manufacturer
documenting their inability to provide the lifts.  The information
from the lift manufacturer must also include when the lifts will be
available.
     In addition, the waiver request must include copies of
advertisements in trade publications and inquiries to trade
associations, seeking lifts for the buses.  The public entity also
must include a full justification for the assertion that a delay in
the bus procurement sufficient to obtain a lift-equipped bus would
significantly impair transportation services in the community. 
There is no length of time that would be a per se delay
constituting a "significant impairment".  It will be more difficult
to obtain a waiver if a relatively short rather than relatively
lengthy delay is involved.  A showing of timetables, absent a
showing of significant impairment of actual transit services, would
not form a basis for granting a waiver. Any waiver granted by the
Department under this provision will be a conditional waiver.  The
conditions are intended to ensure that the waiver provision does
not create a loophole in the accessible vehicle acquisition
requirement that Congress intended to impose.  The ADA requires a
waiver to be limited in duration and the rule requires a
termination date to be included.  The date will be established on
the basis of the information the Department receives concerning the
availability of lifts, in the waiver request and elsewhere.  In
addition, so that a waiver does not become open-ended, it will
apply only to a particular procurement. If a transit agency wants
a waiver for a subsequent delivery of buses in the procurement, or
another procurement entirely, it will have to make a separate
waiver request.
     For example, if a particular order of buses is delivered over
a period of time, each delivery would be the potential subject of
a waiver request.  First, the entity would request a waiver for the
first shipment of buses.  If all of the conditions are met, the
waiver would be granted, with a date specified to coincide with the
due date of the lifts.  When the lifts become available those buses
would have to be retrofitted with the lifts.  A subsequent delivery
of buses -- on the same order -- would have to receive its own
waiver, subject to the same conditions and specifications of the
first waiver.  The purpose of the waiver, as the Department
construes it, is to address a situation in which (because of a
sudden increase in the number of lift-equipped buses requested)
lift manufacturers are unable to produce enough lifts to meet the
demand in a timely fashion.  

37.73 - Purchase or Lease of Used Non-Rail Vehicles by Public
Entities Operating a Fixed Route System.

     The basic rule is that an acquisition of a used vehicle would
have to be for an accessible vehicle.
     There is an exception, however, for situations in which the
transit provider makes a good faith effort to obtain accessible
used vehicles but does not succeed in finding them.  The ADA
requires transit agencies to purchase accessible used vehicles,
providing a "demonstrated good faith efforts" exception to the
requirement.  The reports of the Senate Committee on Labor and
Human Resources and the House Committee on Education and Labor
offered the following guidance on what "good faith efforts"
involve:
     The phrase "demonstrated good faith efforts" is intended to
require a nationwide search and not a search limited to a
particular region.  For instance, it would not be enough for a
transit operator to contact only the manufacturer where the transit
authority usually does business to see if there are accessible used
buses.  It involves the transit authority advertising in a trade
magazine, i.e., Passenger Transport, or contacting the transit
trade association, American Public Transit Association (APTA), to
determine whether accessible used vehicles are available. It is the
Committee's expectation that as the number of buses with lifts
increases, the burden on the transit authority to demonstrate its
inability to purchase accessible vehicles despite good faith
efforts will become more and more difficult to satisfy. S.Rept. 
101-116 at 49; H.Rept. 101-485 at 90.
     Consistent with this guidance, this section requires that good
faith efforts include specifying accessible vehicles in bid
solicitations.  The section also requires that the entity retain
for two years documentation of that effort, and that the
information be available to UMTA and the public.
     It does not meet the good faith efforts requirement to
purchase inaccessible, rather than accessible, used buses, just
because the former are less expensive.  Particularly if the
difference is a difference attributable to the presence of a lift. 
There may be situations in which good faith efforts involve buying
fewer accessible buses in preference to more inaccessible buses. 
     The public participation requirements involved in the
development of the paratransit plans for all fixed route operators
requires an ongoing relationship, including extensive outreach, to
the community likely to be using its accessible service.  We
believe that it will be difficult to comply with the public
participation requirements and not involve the affected community
in the decisions concerning the purchase or lease of used
accessible vehicles.
     There is an exception to these requirements for donated
vehicles.  Not all "zero dollar" transfers are donations, however. 
The legislative history to this provision provides insight.
     It is not the Committee's intent to make the vehicle
accessibility provisions of this title applicable to vehicles
donated to a public entity.  The Committee understands that it is
not usual to donate vehicles to a public entity.  However, there
could be instances where someone could conceivably donate a bus to
a public transit operator in a will.  In such a case, the transit
operators should not be prevented from accepting a gift.         
The Committee does not intend that this limited exemption for
donated vehicles be used to circumvent the intent of the ADA.  For
example, a local transit authority could not arrange to be the
recipient of donated inacessible buses.  This would be a violation
of the ADA. S.Rpt. 101-116, at 46; H.Rpt 101-486, at 87.    
Entities interested in accepting donated vehicles must submit a
request to UMTA to verify that the transaction is a donation.    
There is one situation, in which a vehicle has prior use is not
treated as a used vehicle.  If a vehicle has been remanufactured,
and it is within the period of the extension of its useful life, it
is not viewed as a used vehicle (see H. Rept. 101-485, Pt 1 at 27). 
During this period, such a vehicle may be acquired by another
entity without going through the good faith efforts process.  This
is because, at the time of its remanufacture, the bus would have
been made as accessible if feasible.  When the vehicle has
completed its extended useful life (e.g., the beginning of year six
when its useful life has extended five years), it becomes subject
to used bus requirements.

37.75 - Remanufacture of Non-Rail Vehicles and Purchase or Lease
of Remanufactured Non-rail Vehicles by Public Entities Operating
Fixed Route Systems.

     This section tracks the statute closely, and contains the
following provisions.   First, it requires any public entity
operating a fixed route system to purchase an accessible vehicle if
the acquisition occurs after August 25, 1990, if the vehicle is
remanufactured after August 25, 1990, or the entity contracts or
undertakes the remanufacture of a vehicle after August 25, 1990. 
The ADA legislative history makes it clear that remanufacture is to
include changes to the structure of the vehicle which extend the
useful life of the vehicle for five years.  It clearly is not
intended to capture things such as engine overhauls and the like.
     The term remanufacture, as used in the ADA context, is
different from the use of the term in previously issued UMTA
guidance.  The term has a specific meaning under the ADA:  there
must be structural work done to the vehicle and the work must
extend the vehicle's useful life by five years.   The ADA imposes
no requirements on what UMTA traditionally considers bus
rehabilitation.  Such work involves rebuilding a bus to original
specifications and focuses on mechanical systems and interiors. 
Often this work includes replacing components.  It is less
extensive than remanufacture. The statute, and the rule, includes
an exception for the remanufacture of historical vehicles.  This
exception applies to the remanufacture of or purchase of a
remanufactured vehicle that (1) is of historic character; (2)
operates solely on a segment of a fixed route system which is on
the National Register of Historic Places; and (3) making the
vehicle accessible would significantly alter the historic character
of the vehicle.  The exception only extends to the remanufacture
that would alter the historic character of the vehicle.  All
modifications that can be made without altering the historic
character (such as slip resistant flooring) must be done.

37.77 - Purchase or Lease of New Non-Rail Vehicles  by Public
Entities Operating a Demand Responsive System for the General
Public 
     Section 224 of the ADA requires that a public entity operating
a demand responsive system purchase or lease accessible new
vehicles, for which a solicitation is made after August 25, 1990,
unless the system, when viewed in its entirety, provides a level of
service to individuals with disabilities, including individuals who
use wheelchairs, equivalent to the level of service provided to
individuals without disabilities.  This section is the same as the
October 4, 1990 final rule which promulgated the immediately
effective acquisition requirements of the ADA.
     The Department has been asked to clarify what "accessible when
viewed in its entirety" means in the context of a demand responsive
system being allowed to purchase an inaccessible vehicle.  First,
it is important to note that this exception applies only to demand
responsive systems (and not fixed route systems).  The term
"equivalent service" was discussed during the passage of the ADA. 
Material from the legislative history indicates that "when viewed
in its entirety/equivalent service" means that "when all aspects of
a transportation system are analyzed, equal opportunities for each
individual with a disability to use the transportation system must
exist. (H. Rept. 101-184, Pt.2, at 95; S. Rept. 101-116 at 54). 
For example, both reports said that "the time delay between a phone
call to access the demand responsive system and pick up the
individual is not greater because the individual needs a lift or
ramp or other accommodation to access the vehicle." (Id.)   
     Consistent with this, the Department has specified certain
service criteria that are to be used when determining if the
service is equivalent.  As in previous rulemakings on this
provision, the standards (which include service area, response
time, fares, hours and days of service, trip purpose restrictions,
information and reservations capability, and other capacity
constraints) are not absolute standards.  They do not say, for
example, that a person with a disability must be picked up in a
specified number of hours.  The requirement is that there must be
equivalent service for all passengers, whether or not they have a
disability.  If the system provides service to persons without
disabilities within four hours of a call for service, then
passengers with disabilities must be afforded the same service.  
     The Department has been asked specifically where an entity
should send its "equivalent level of service" certifications.  We
provide the following:  Equivalent level of service certifications
should be submitted to the state program office if you are a public
entity receiving  UMTA funds through the state   All other entities
should submit their equivalent level of service certifications to
the UMTA regional office (listed in Appendix B to this part). 
Certifications must be submitted before the acquisition of the
vehicles. 
     Paragraph (e) of this section authorizes a waiver for the
unavailability of lifts.  Since demand responsive systems need not
purchase accessible vehicles if they can certify equivalent
service, the Department has been asked what this provision is doing
in this section.
     Paragraph (e) applies in the case in which an entity operates
a demand responsive system, which is not equivalent, and the entity
cannot find accessible vehicles to acquire.  In this case, the
waiver provisions applicable to a fixed route entity purchasing or
leasing inaccessible new vehicles applies to the demand responsive
operator as well.

37.79 - Purchase or Lease of New Rail Vehicles by Public Entities
Operating Rapid or Light Rail Systems.

     This section echoes the requirement of 37.71 - all new rail
cars must be accessible. 

37.81 - Purchase or Lease of Used Rail Vehicles by Public Entities
Operating Rapid or Light Rail Systems.

     This section lays out the requirements for a public entity
acquiring a used rail vehicle.  The requirements and standards are
the same as those specified for non-rail vehicles in 37.73.  While
we recognize it may create difficulties for entities in some
situations, the statute does not include any extension or
short-term leases.  The Department will consider, in a case-by-case
basis, how the good faith efforts requirement would apply in the
case of an agreement between rail carriers to permit
quick-response, short-term leases of cars over a period of time.

37.83 - Remanufacture of Rail Vehicles and Purchase or Lease of
Remanufactured Rail Vehicles by Public Entities Operating Rapid or
Light Rail Systems.

     This section parallels the remanufacturing section for buses,
including the exception for historical vehicles.  With respect to
an entity having a class of historic vehicles that may meet the
standards for the historic vehicle exception (e.g., San Francisco
cable cars), the Department would not object to a request for
application of the exception on a system-wide, as approved to
car-by-car, basis.

37.85 Purchase or Lease of New Intercity and Commuter Rail Cars.

     This section incorporates the statutory requirement that new
intercity and commuter rail cars be accessible.  The specific
accessibility provisions of the statute (for example, there are
slightly different requirements for intercity rail cars versus
commuter rail cars) are specified in Part 38 of this regulation.
These standards are adopted from the voluntary guidelines issues by
the Access Board.
   The section basically parallels the acquisition requirements for
buses and other vehicles.  It should be noted that the definition
of commuter rail operator clearly allows for additional operators
to qualify as commuter, since the definition describes the
functional characteristics of an operator, as well as listing
existing commuter rail operators.  We would point out that the ADA
applies this requirement to all new vehicles.  This includes not
only vehicles and systems that currently are being operated in the
U.S., but new, experimental, or imported vehicles and systems.  The
ADA does not stand in the way of new technology, but it does
require that new technology, and the benefits it brings, be
accessible to all persons, including those with disabilities.  This
point applies to all vehicle acquisition provisions of this
regulation, whether for rail or non-rail, private or public, fixed
route or demand responsive vehicles and systems.

37.87 Purchase or Lease of Used Intercity and Commuter Rail Cars.

     The section also parallels closely the requirements in the ADA
for the purchase or lease of accessible used rail vehicles.  We
acknowledge that, in some situations, the statutory requirement for
to make good faith efforts to acquire accessible used vehicles may
create difficulties for rail operators attempting to lease rail
cars quickly for a short time (e.g., as fill-ins for cars which
need repairs).  In some cases, it may be possible to mitigate these
difficulties through means such as making good faith efforts with
respect to an overall agreement between two rail operators to make
cars available to one another when needed, rather than each time a
car is provided under such an agreement.  

37.89 Remanufacture of Intercity and Commuter Rail Cars.   

This section requires generally that remanufactured cars be made
accessible, to the maximum extent feasible.  Feasible is defined in
paragraph (c) of the section to be "unless an engineering analysis
demonstrates that remanufacturing the car to be accessible would
have a significant adverse effect on the structural integrity of
the car."  Increased cost is not a reason for viewing other
sections of this subpart concerning remanufactured vehicles.
     In addition, this section differs from the counterpart
sections for non-rail vehicles and light and rapid rail vehicles in
two ways.  First, the extension of useful life needed to trigger
the section is ten rather than five years. Second, there is no
historic vehicle exception.  Both of these differences are
statutory.
     Remanufacture of vehicles implies work that extends their
expected useful life of the vehicle.  A mid-life overhaul, not
extending the total useful life of the vehicle, would not be viewed
as a remanufacture of the vehicle.

37.93 - One Car Per Train Rule.

     This section implements the statutory directive that all rail
operators (light, rapid, commuter and intercity) have at least one
car per train accessible to persons with disabilities, including
individuals who use wheelchairs by July 26, 1995.  (See ADA
sections 242(a)(1), 242(b)(1), 228(b)(1).) Section 37.93 contains
this general requirement.  In some cases, entities will meet the
one-car-per train rule through the purchase of new cars.  In this
case, since all new rail vehicles have to be accessible, compliance
with this provision is straightforward.
     However, certain entities may not be purchasing any new
vehicles by July 26, 1995, or may not be purchasing enough vehicles
to ensure that one car per train is accessible.  In these cases,
these entities will have to retrofit existing cars to meet this
requirement.What a retrofitted car must look like to meet the
requirement has been decided by the Access Board.  These standards
are contained in Part 38 of this rule.
     We would point that, consistent with the Access Board
standards, a rail system using mini-high platforms or wayside lifts
is not required, in most circumstances, to "double-stop" in order
to give passengers a chance to board the second or subsequent car
in a train at the mini-high platform or way-side lift.  The only
exception to this would be a situation in which all the wheelchair
positions spaces in the first car were occupied.  In this case, the
train would have to double-stop to allow a wheelchair user to
board, rather than passing the person by when there was space
available in other than the first car.

37.95  Ferries and Other Passenger Vessels. 

Although at this time there are no specific requirements for
vessels, ferries and other passenger vessels operated by public
entities are subject to the requirements of 37.5 of this Part and
applicable requirements of 28 CFR Part 35, the DOJ rule under Title
II of the ADA.

Subpart E - Acquisition of Accessible Vehicles by Private Entities

37.101  Purchase or Lease of Non-Rail Vehicles by Private Entities
Not Primarily Engaged in the Business of Transporting People.

37.103  Purchase or Lease of New Non-Rail Vehicles by Private
Entities Primarily Engaged in the Business of Transporting People.

37.105  Equivalent Service Standard

     The first two sections spell out the distinctions among the
different types of service elaborated in the ADA and requirements
that apply to them.  For clarity, we provide the following chart.

          PRIVATE ENTITIES "NOT PRIMARILY ENGAGED"System
Type Vehicle Capacity    RequirementFixed Route   Over 16   Acquire
AccessibleVehicleFixed Route  16 or less     Acquire
AccessibleVehicle, orEquivalencyDemand Responsive Over 16   Acquire
Accessible Vehicle, orEquivalencyDemand Responsive     16 or
less Equivalency - see37.171 

     PRIVATE ENTITIES 'PRIMARILY ENGAGED"System Type   
VehicleType/Capacity     RequirementFixed Route   All new
vehiclesexcept auto, vanwith less than 8capacity, or over theroad
bus  Acquire Accessible VehicleDemand Responsive  Same as above  
Acquire AccessibleVehicle, orEquivalencyEither fixed routeor demand
responsive     New vans with acapacity of less than8   Same as
above
     Equivalency, for purposes of these requirements, is spelled
out in 37.105.  It is important to note that some portions of this
section (referring to response time, reservations capacity, and
restrictions on trip purpose) apply only to demand responsive
systems.  Another provision (schedules/headways) applies only to
fixed route systems.  This is because these points of comparison
apply only to one or the other type system.  The remaining
provisions apply to both kinds of systems.
     In applying the provisions this section, it is important to
note that they are only points of comparison, not substantive
criteria.  For example, unlike the response time criterion of
37.131, this section does not require that a system provide any
particular response time.  All it says is that, in order for there
to be equivalency, if the demand responsive system gets a van to a
non-disabled person in 2 hours, or 8 hours, or a week and a half
after a call for service, the system must get an accessible van to
a person with a disability in 2 hours, or 8 hours, or a week and a
half.
     The vehicle acquisition and equivalency provisions work
together in the following way.  A private entity is about to
acquire a vehicle for a transportation service in one of the
categories to which equivalency is relevant.  The entity looks at
its present service (considered without regard to the vehicle it
plans to acquire).  Does the present service meet the equivalency
standard?  (In answering this question, the point of reference is
the next potential customer who needs an accessible vehicle.  The
fact that such persons have not called in the past is irrelevant). 
If not, the entity is required to acquire an accessible vehicle. 
If so, the entity may acquire an accessible or an inaccessible
vehicle.   This process must be followed every time the entity
purchases or leases a vehicle.  Given changes in the mixes of both
customers and vehicles, the answer to the question about
equivalency will probably not be the same for an entity every time
it is asked.   One difference between the requirements for
"private, not primarily" and "private, primarily" entities is that
the requirements apply to all vehicles purchased or leased for the
former, but only to new vehicles for the latter.  This means that
entities in the latter category are not required to acquire
accessible vehicles when they purchase or lease used vehicles. 
Another oddity in the statute which entities should note is that
the requirement for "private, primarily" entities to acquire
accessible vans with less than eight passenger capacity (or provide
equivalent service) does not become effective until after February
25, 1992 (This also date also applies no private entities
"primarily engaged" which purchase passenger rail cars).  All other
vehicle acquisition requirements became effective after August 25,
1990.
     The Department views the line between "private, primarily" and
"private, not primarily" entities as being drawn with respect to
the bus, van, or other service which the entity is providing.  For
example, there is an obvious sense in which an airline or car
rental company is primarily engaged in the business of transporting
people.  If the airline or car rental agency runs a shuttle bus
from the airport terminal to a downtown location or a rental car
lot, however, the Department views that shuttle service as covered
by the "private, not primarily" requirements of the rule (see
discussion of the Applicability sections above).  This is because
the airline or car rental agency is not primarily engaged in the
business of providing transportation by bus or van.  The
relationship of the bus or van service to an airline's main
business is analogous to that of a shuttle to a hotel.  For this
purpose, it is of only incidental interest that the main business
of the airline is flying people around the country instead of
putting them up for the night.

37.109  Ferries and Other Passenger Vessels.

     Although at this time there are no specific requirements for
vessels, ferries and other passenger vessels operated by private
entities are subject to the requirements of 37.5 of this Part and
applicable requirements of 28 CFR Part 36, the DOJ rule under Title
III of the ADA.

Subpart F - Paratransit as a Complement to Fixed Route Service.

37.121  Requirement for Comparable Complementary Paratransit
Service.
     This section sets forth the basic requirement that all public
entities who operate a fixed route system have to provide
paratransit service that is both comparable and complementary to
the fixed route service.  By "complementary," we mean service that
acts as a "safety net" for individuals with disabilities who cannot
use the fixed route system.  By "comparable," we mean service that
meets the service criteria of this Subpart.
     This requirement applies to light and rapid rail systems as
well as to bus systems, even when rail and bus systems share all or
part of the same service area.  Commuter bus, commuter rail and
intercity rail systems do not have to provide paratransit, however. 
The remaining provisions of Subpart F set forth the details of the
eligibility requirements for paratransit, the service criteria that
paratransit systems must meet, the planning process involved, and
the procedures for applying for waivers based on undue financial
burden.
     Paratransit may be provided by a variety of modes.  Publicly
operated dial-a-ride vans, service contracted out to a private
paratransit provider, user-side subsidy programs, or any
combination of these and other approaches is acceptable.  Entities
who feel it necessary to apply for an undue financial burden waiver
should be aware that that one of the factors UMTA will examine in
evaluating waiver requests is efficiencies the provider could
realize in its paratransit service.  Therefore, it is important for
entities in this situation to use the most economical and efficient
methods of providing paratransit they can devise.      It is also
important for them to establish and consistently implement strong
controls against fraud, waste and abuse in the paratransit system. 
 Fraud, waste and abuse can drain significant resources from a
system and control of there problems is an important "efficiency
for any paratransit system.
  It will be difficult for the Department to grant an undue
financial burden waiver to entities which do not have a good means
of determining if fraud, waste and abuse are problems and adequate
methods of combating these problems, where they are found to exist. 
     
37.123  ADA Paratransit Eligibility - Standards

General Provisions

     This section sets forth the minimum requirements for
eligibility for complementary paratransit service.  All fixed route
operators providing complementary paratransit must make service
available at least to individuals meeting these standards.  The ADA
does not prohibit providing paratransit service to anyone. 
Entities may provide service to additional persons as well.  Since
only service to ADA eligible persons is required by the rule,
however, only the costs of this service can be counted in the
context of a request for an undue financial burden waiver.

     When the rule says that ADA paratransit eligibility shall be
strictly limited to persons in the eligible categories, then, it is
not saying that entities are in any way precluded from serving
other people.  It is saying that the persons who must be provided
service, and counting the costs of providing them service, in
context of an undue burden waiver, are limited to the regulatory
categories.

  Temporary Disabilities 

     Eligibility may be based on a temporary as well as a permanent
disability.  The individual must meet one of the three eligibility
criteria in any case, but can do so for a limited period of time. 
For example, if an individual breaks both legs and is in two casts
for several weeks, becomes a wheelchair user for the duration, and
the bus route that would normally take him to work is not
accessible, the individual could be eligible under the second
eligibility category.In granting eligibility to such a person, the
entity should establish an expiration date for eligibility
consistent with the expected end of the period disability. 

 Trip-by-Trip Eligibility

     A person may be ADA paratransit eligible for some trips but
not others.  Eligibility does not inhere in the individual or his
or her disability, as such, but in meeting the functional criteria
of inability.to use the fixed route system established by the ADA. 
This inability is likely to change with differing circumstances. 
     For example, someone whose impairment-related condition is a
severe sensitivity to temperatures below 20 degrees is not
prevented from using fixed route transit when the temperature is 75
degrees.  Someone whose impairment-related condition is an
inability to maneuver a wheelchair through snow is not prevented
from using fixed route transit when there is no snow on the ground. 
Someone with a cognitive disability may have learned to take the
same bus route to a supported employment job every day.  This
individual is able to navigate the system for work purposes and
therefore would not be eligible for paratransit for work trips. 
But the individual may be unable to get to other destinations on
the bus system without getting lost, and would be eligible for
paratransit for non-work trips.  Someone who normally drives his
own car to a rail system park and ride lot may have a specific
impairment related condition preventing him from getting to the
station when is car is in the shop.  A person who can use
accessible fixed route service can go to one destination on an
accessible route; another destination would require the use of an
inaccessible route.  The individual would be eligible for the
latter but not the former.
     In many cases, though the person is eligible for some trips
but not others, eligibility determinations would not have to be
made literally on a trip-by-trip basis.  It may often be possible
to establish the conditions on eligibility as part of the initial
eligibility determination process.  Someone with a temperature
sensitivity might be granted seasonal eligibility.  Somebody who is
able to navigate the system for work but not non-work trips could
have this fact noted in his or her eligibility documentation.  
Likewise, someone with a variable condition (e.g., multiple
sclerosis, HIV disease, need for kidney dialysis) could have their
eligibility based on the underlying condition, with paratransit
need for a particular trip dependent on self-assessment or a set of
medical standards (e.g., trip within a certain amount of time after
a dialysis session).  On the other hand, persons in the second
eligibility category (people who can use accessible fixed route
service where it exists) would to be given service on the basis of
the particular route they would use.for a given trip.
     Because  entities are not precluded from providing service
beyond that required by the rule, an entity that believes it is too
difficult to administer a program of trip-by-trip eligibility is
not required to do so.  Nothing prevents an entity from providing
all requested trips to a person whom the ADA requires to receive
service for only some trips.  In this case, if the entity intends
to request an undue financial burden waiver, the entity, as
provided in the undue burden provisions of this rule, must
estimate, by a statistically valid technique, the percentage of its
paratransit trips that are mandated by the ADA.  Only that
percentage of its total costs will be counted in considering the
undue burden waiver request.

Category 1 Eligibility

     The first eligibility category includes, among others, persons
with mental or visual impairments who, as a result, cannot
"navigate the system."  This eligibility category includes people
who cannot board, ride, or disembark from an accessible vehicles
"without the assistance of another individual."  This means that,
if an individual needs an attendant to board, ride, or disembark
from an accessible fixed route vehicles (including "navigating the
system"), the individual is eligible for paratransit.  One
implication of this language is that an individual does not lose
paratransit eligibility based on "inability to navigate the system"
because the individual chooses to travel with a friend on the
paratransit system (even if the friend could help the person
navigate the fixed route system).  Eligibility in this category is
based on ability to board, ride, and disembark independently.    
     Mobility training (e.g., of persons with mental or visual
impairments) may help to improve the ability of persons to navigate
the system or to get to a bus stop.  Someone who is successfully
mobility trained to use the fixed route system for all or some
trips need not be provided paratransit service for those trips. 
The Department encourages entities to sponsor such training as a
means of assisting individuals to use fixed route rather than
paratransit.

Category 2 Eligibility

     The second eligibility criterion is the broadest, with respect
to persons with mobility impairments, but its impact should be
reduced over time as transit systems become more accessible.  This
category applies to persons who could use accessible fixed route
transportation, but accessible transportation is not being used at
the time, and on the route, the persons would travel.  This concept
is route based, not system based.
     Speaking first of bus systems, if a person is traveling from
Point A to Point B on route 1, and route 1 is accessible, the
person is not eligible for paratransit for the trip.  This is true
even though other portions of the system are still inaccessible. 
If the person is traveling from Point A to Point C on route 2,
which is not accessible, the person is eligible for that trip.  If
the person is traveling from point A to Point B on accessible route
1, with a transfer at B to go on inaccessible route 3 to Point D,
then the person is eligible for the second leg of the trip. (The
entity could choose to provide a paratransit trip from A to D or a
paratransit or on-call bus trip from B to D.)
     For purposes of this standard, we view a route as accessible
when all buses scheduled on the route are accessible.  Otherwise,
it is unlikely that an accessible vehicle could be provided "within
a reasonable period of [a] time" when the individual wants to
travel, as the provision requires.   We recognize that some
systems' operations may not be organized in a way that permits
determining whether a given route is accessible, even though a
route-by-route determination appears to be contemplated by the
statute.  In such cases, it may be that category 2 eligibility
would persist until the entire system was eligible.
     With respect to a rail system, an individual is eligible under
this standard if, on the route or line he or she wants to use,
there is not yet one car per train accessible or if key stations
are not yet accessible.  This eligibility remains even if bus
systems covering the area served by the rail system have become 100
percent accessible.  This is necessary because people use rail
systems for different kinds of trips than bus systems. It would
often take much more in the way of time, trouble, and transfers for
a person to go on the buses of one or more transit authorities than
to have a direct trip provided by the rail operator.  Since bus
route systems are often designed to feed rail systems rather than
duplicate them, it may often be true that "you can't get there from
here" relying entirely on bus routes or the paratransit service
area that parallels them.
     If the lift on a vehicle cannot be deployed at a particular
stop, an individual is eligible for paratransit under this category
with respect to the service to the inaccessible stop.  If on
otherwise accessible route 1, an individual wants to travel from
Point A to Point E, and the lift cannot be deployed at E, the
individual is eligible for paratransit for the trip. (On-call bus
would not work as a mode of providing this trip, since a bus lift
will not deploy at the stop.)  This is true even though service
from Point A to all other points on the line is fully accessible. 
In this circumstance, the entity should probably think seriously
about working with the local government involved to have the stop
moved or made accessible.
     When we say that a lift cannot be deployed, we mean literally
that the mechanism will not work at the location to permit a
wheelchair user or other person with a disability to disembark or
that the lift will be damaged if it is used there.  It is not
consistent with the rule for a transit provider to declare a stop
off-limits to someone who uses the lift while allowing other
passengers to use the stop.  However, if temporary conditions not
under the operator's control (e.g., construction, an accident, a
landslide) make it so hazardous for anyone to disembark that the
stop is temporarily out of service forall passengers may the
operator refuse to allow a passenger to disembark using the lift.

Category 3  Eligibility

     The third eligibility criterion concerns individuals who have
a specific impairment-related condition which prevents them from
getting to or from a stop or station.  As noted in the legislative
history of the ADA, this is intended to be a "very narrow
exception" to the general rule that difficulty in traveling to or
from boarding or disembarking locations is not a basis for
eligibility. 
     What is a specific impairment-related condition?  The
legislative history mentions four examples: chronic fatigue,
blindness, a lack of cognitive ability to remember and follow
directions, or a special sensitivity to temperature.  Impaired
mobility, severe communications disabilities (e.g., a combination
of serious vision and hearing impairments), cardiopulmonary
conditions, or various other serious health problems may have
similar effects.  The Department does not believe that it is
appropriate, or even possible, to create an exhaustive list.     
     What the rule uses as an eligibility criterion is not just the
existence of a specific impairment-related condition.  To be a
basis for eligibility, the condition must prevent the individual
from traveling to a boarding location or from a disembarking
location.  The word "prevent" is very important.  For anyone, going
to a bus stop and waiting for a bus is more difficult and less
comfortable than waiting for a vehicle at one's home.  This is
likely to be all the more true for an individual with a disability. 
But for many persons with disabilities, in many circumstances,
getting to a bus stop is possible.  If an impairment related
condition only makes the job of accessing transit more difficult
than it might otherwise be, but does not prevent the travel, then
the person is not eligible.
     For example, in many areas, there are not yet curb cuts.  A
wheelchair user can often get around this problem by taking a less
direct route to a destination than an ambulatory person would take. 
That involves more time, trouble, and effort than for someone
without a mobility impairment.  But the person can still get to the
bus stop.  On the basis of these architectural barriers, the person
would not be eligible.
     Entities are cautioned that, particularly in cases involving
lack of curb cuts and other architectural barrier problems,
assertions of eligibility should be given tight scrutiny.  Only if
it is apparent from the facts of a particular case that an
individual cannot find a reasonable alternative path to a location
should eligibility be granted.
     If we add a foot of snow to the scenario, then the same person
taking the same route may be unable to get to the bus stop.  If is
not the snow alone that stops him; it is the interaction of the
snow and the fact that the individual has a specific-impairment
related condition that requires him to push a wheelchair through
the snow that prevents the travel.
     Inevitably, some judgment is required to distinguish between
situations in which travel is prevented and situations in which it
is merely made more difficult.  In the Department's view, a case of
"prevented travel" can be made not only where travel is literally
impossible (e.g., someone cannot find the bus stop, someone cannot
push a wheelchair through the foot of snow or up a steep hill) but
also where the difficulties are so substantial that a reasonable
person with the impairment-related condition in question would be
deterred from making the trip. 
     The regulation makes the interaction between an
impairment-related condition and the environmental barrier (whether
distance, weather, terrain, or architectural barriers) the key to
eligibility determinations.  This is an individual determination. 
Depending on the specifics of their impairment-related conditions,
one individual may be able to get from his home to a bus stop under
a given set of conditions, while his next-door neighbor may not.  

Companions

     The ADA requires entities to provide paratransit to one person
accompanying the eligible individual, with others served on a
space- available basis.  The one individual who is guaranteed space
on the vehicle can be anyone -- family member, business associate,
friend, date, etc.  The provider cannot limit the eligible
individual's choice of type of companion.  The transit authority
may require that the eligible individual reserve a space for the
companion when the individual reserves his or her own ride.  This
one individual rides even if this means that there is less room for
other eligible individuals.  Additional individuals beyond the
first companion are carried only on a space available basis; that
is, they do not displace other ADA paratransit eligible
individuals.
     A personal care attendant (i.e., someone designated or
employed specifically to help the eligible individual meet his or
her personal needs) always may ride with the eligible individual. 
If there is a personal care attendant on the trip, the eligible
individual  may still bring a companion, plus additional companions
on a space available basis.  The entity may require that, in
reserving the trip, the eligible individual reserve the space for
the attendant.
     To prevent potential abuse of this provision, the rule
provides that a companion (e.g., friend or family member) does not
count as a personal care attendant unless the eligible individual
regularly makes use of a personal care attendant and the companion
is actually acting in that capacity.  As noted under 37.125, a
provider may require that, as part of the initial eligibility
certification process, an individual indicate whether he or she
travels with a personal care attendant.  If someone does not
indicate the use of an attendant, then any individual accompanying
him or her would be regarded simply as a companion.
     To be viewed as "accompanying" the eligible individual, a
companion must have the same origin and destination points as the
eligible individual.  In appropriate circumstances, entities may
also wish to provide service to a companion who has either an
origin or destination, but not both, with the eligible individual
(e.g., the individual's date is dropped off at her own residence on
the return frip from a concert).

37.125  ADA Paratransit Eligibility - Process

     This section requires an eligibility process to be established
by each operator of complementary paratransit.  The details of the
process are to be devised through the planning and public
participation process of this Subpart.  The process may not impose
unreasonable administrative burdens on applicants, and, since it is
part of the entity's nondiscrimination obligations, may not involve
"user fees" or application fees to the applicant. 
     The process may include functional criteria related to the
substantive eligibility criteria of 37.123 and, where appropriate,
functional evaluation or testing of applicants.  The substantive
eligibility process is not aimed at making a medical or diagnostic
determination.  While evaluation by a physician (or professionals
in rehabilitation or other relevant fields) may be used as part of
the process, a diagnosis of a disability is not dispositive.  What
is needed is a determination of whether, as a practical matter, the
individual can use fixed route transit in his or her own
circumstances.  That is a transportation decision primarily, not a
medical decision.
     The goal of the process is to ensure that only people who meet
the regulatory criteria, strictly applied, are regarded as ADA
paratransit eligible.  The Department recognizes that transit
entities may wish to provide service to other persons, which is not
prohibited by this rule.  However, the eligibility process should
clearly distinguish those persons who are ADA eligible from those
who are provided service on other grounds.  For example,
eligibility documentation must clearly state whether someone is ADA
paratransit eligible or eligible on some other basis.
     Often, people tend to think of paratransit exclusively in
terms of people with mobility impairments.  Under the ADA, this is
not accurate.  Persons with visual impairments may be eligible
under either the first or third eligibility categories.  To
accommodate them, all documents concerning eligibility must be made
available in one or more accessible formats, on request. 
Accessible formats include computer disks, braille documents, audio
cassettes, and large print documents.  A document does not
necessarily need to be made available in the format a requester
prefers, but it does have to be made available in a format the
person can use.  There is no use giving a computer disk to someone
who does not have a computer, for instance, or a braille document
to a person who does not read braille.
     When a person applies for eligibility, the entity will provide
all the needed forms and instructions.  These forms and
instructions may include a declaration of whether the individual
travels with a personal care attendant.  The entity may make
further inquiries concerning such a declaration (e.g., with respect
to the individual's actual need for a personal care attendant). 
     When the application process is complete -- all necessary
actions by the applicant taken -- the entity should process the
application in 21 days.  If it is unable to do so, it must begin to
provide service to the applicant on the 22nd day, as if the
application had been granted.  Service may be terminated only if
and when the entity denies the application.  All determinations
shall be in writing; in the case of a denial, reasons must be
specified.  The reasons must specifically relate the evidence in
the matter to the eligibility criteria of this rule and of the
entity's process.  A mere recital that the applicant can use fixed
route transit is not sufficient.
     For people granted eligibility, the documentation of
eligibility shall include at least the following information:    
     -- the individual's name
     -- the name of the transit provider
     -- the telephone number of the entity's paratransit          
      coordinator
     -- an expiration date for eligibility
     -- any conditions or limitations on the individual's         
      eligibility, including the use of a personal care          
     attendant.
     The last point refers to the situation in which a person is
eligible for some trips but not others. or if the traveler is
authorized to have a personal care attendant ride free of charge. 
For example, the documentation may say that the individual is
eligible only when the temperature falls below a certain point, or
when the individual is going to a destination not on an accessible
bus route, or for non-work trips, etc.
     As the mention of an expiration date implies, certification is
not forever.  The entity may recertify eligibility at reasonable
intervals to make sure that changed circumstances have not
invalidated or changed the individual's eligibility.  In the
Department's view, a reasonable interval for recertification is
probably between one and three years.  Less than one year would
probably be too burdensome for consumers; over three years would
begin to lose the point of doing recertifications.  The
recertification interval should be stated in the entity's plan.  Of
course, a user of the service can apply to modify conditions on his
or her eligibility at any time.
     The administrative appeal process is intended to give
applicants who have been denied eligibility the opportunity to have
their cases heard by some official other than the one who turned
them down in the first place.  In order to have appropriate
separation of functions -- a key element of administrative due
process -- not only must the same person not decide the case on
appeal, but that person, to the extent practicable, should not have
been involved in the first decision (e.g., as a member of the same
office, or a supervisor or subordinate of the original
decisionmaker).  When, as in the case of a small transit operator,
this degree of separation is not feasible, the second decisionmaker
should at least be "bubbled" with respect to the original decision
(i.e., not have participated in the original decision or discussed
it with the original decisionmaker).  In addition, there must be an
opportunity to be heard in person as well as the chance to present
written evidence and arguments.  All appeals decisions must be in
writing, stating the reasons for the decision.
     To prevent the filing of stale claims, the entity may
establish a 60 day "statute of limitations" on filing of appeals,
the time starting to run on the date the individual is notified of
the negative initial decision.  After the appeals process has been
completed (i.e., the hearing and/or written submission completed),
the entity should make a decision within 30 days.  If it does not,
the individual must be provided service beginning the 31st day,
until and unless an adverse decision is rendered on his or her
appeal.
     Under the eligibility criteria of the rule, an individual has
a right to paratransit if he or she meets the eligibility criteria. 
As noted in the discussion of the nondiscrimination section, an
entity may refuse service to individual with a disability who
engages in violent, seriously disrputive, or illegal conduct, using
the same standards for exclusion that would apply to any other
person who acted in such an inppropriate way.
     The rule also allows an entity to establish a process to
suspend, for a reasonable period of time, the provision of
paratransit service to an ADA eligible person who establishes a
pattern or practice of missing scheduled trips.  The purpose of
this process would be to deter or deal with chronic "no-shows." 
The sanction system -- articulated criteria for the imposition of
sanctions, length of suspension periods, details of the
administrative process, etc. -- would be developed through the
public planning and participation process for the entity's
paratransit plan, and the result reflected in the plan submission
to UMTA.
     It is very important to note that sanctions could be imposed
only for a "pattern or practice" of missed trips.  A pattern or
practice involves intentional, repeated or regular actions, not
isolated, accidental, or singular incidents.  Moreover, only
actions within the control of the individual count as part of a
pattern or practice.  Missed trips due to operator error are not
attributable to the individual passenger for this purpose.  If the
vehicle arrives substantially after the scheduled pickup time, and
the passenger has given up on the vehicle and taken a taxi or gone
down the street to talk to a neighbor, that is not a missed trip
attributable to the passenger.  If the vehicle does not arrive at
all, or is sent to the wrong address, or to the wrong entrance to
a building, that is not a missed trip attributable to the
passenger.  There may be other circumstances beyond the
individual's control (e.g., a sudden turn for the worse in someone
with a variable condition,  a sudden family emergency) that make it
impracticable for the individual to travel at the scheduled time
and also for the individual to notify the entity in time to cancel
the trip before the vehicle comes.  Such circumstances also would
not form part of a sanctionable pattern or practice.   Once an
entity has certified someone as eligible, the individual's
eligibility takes on the coloration of a property right.  (This is
not merely a theoretical statement.  If one depends on
transportation one has been found eligible for to get to a job, and
the eligibility is removed, one may lose the job.  The same can be
said for access to medical care or other important services.) 
Consequently, before eligibility may be removed "for cause" under
this provision, the entity must provide administrative due process
to the individual. 
     If the entity proposes to impose sanctions on someone, it must
first notify the individual in writing (using accessible formats
where necessary).  The notice must specify the basis of the
proposed action (e.g., Mr. Smith scheduled trips for 8 a.m. on May
15, 2 p.m. on on June 3, 9 a.m. on June 21, and 9:20 p.m. on July
10, and on each occasion the vehicle appeared at the scheduled time
and Mr. Smith was nowhere to be found) and set forth the proposed
sanction (e.g., Mr. Smith would not receive service for 15 days). 
     The entity would provide the individual an opportunity to be
heard (i.e., an in-person informal hearing before a decisionmaker)
as well as to present written and oral information and arguments. 
All relevant entity records and personnel would be made available
to the individual, and other persons could testify.  It is likely
that, in many cases, an important factual issue would be whether a
missed trip was the responsibility of the provider or the
passenger, and the testimony of other persons and the provider's
records or personnel are likely to be relevant in deciding this
issue.  While the hearing is intended to be informal, the
individual could bring a representative (e.g., someone from an
advocacy organization, an attorney).
     The individual may waive the hearing and proceed on the basis
of written presentations.  If the individual does not respond to
the notice within a reasonable time, the entity may make, in
effect, a default finding and impose sanctions.  If there is a
hearing, and the individual needs paratransit service to attend the
hearing, the entity must provide it.  We would emphasize that,
prior to a finding against the individual after this due process
procedure, the individual must continue to receive service.  The
entity cannot suspend service while the matter is pending.  The
entity must notify the individual in writing about the decision,
the reasons for it, and the sanctions imposed, if any.  Again, this
information would be made available in accessible formats.   In the
case of a decision adverse to the individual, the administrative
appeals process of this section would apply.  The sanction would be
stayed pending an appeal.
     There are means other than sanctions, however, by which a
transit provider can deal with a "no-show" problem in its system.
Providers who use "real time scheduling" report that this technique
is very effective in reducing no-shows and cancellations, and
increasing the mix of real time scheduling in a system can probably
be of benefit in this area.  Calling the customer to reconfirm a
reasonable time before pickup can head off some problems, as can
educating consumers to call with cancellations ahead of time. 
Training of dispatch and operator personnel can help to avoid
miscommunications that lead to missed trips.

37.127  Complementary Paratransit for Visitors.

     This section requires each entity having a complementary
paratransit system to provide service to visitors from out of town
on the same basis as it is provided to local residents.  By "on the
same basis," we mean under all the same conditions, service
criteria, etc., without distinction.  For the period of a visit,
the visitor is treated exactly like an eligible local user, without
any higher priority being given to either.
     A visitor is defined as someone who does not reside in the
jurisdiction or jurisdictions served by the public entity or other
public entities with which it coordinates paratransit service.  For
example, suppose an five-county metropolitan area provides
coordinated paratransit service under a joint plan.  A resident of
any of the five counties would not be regarded as a visitor in any
of them.  Note that the rule talks in terms of "jurisdiction"
rather than "service area."  If an individual lives in XYZ County,
but outside the fixed route service area of that county's transit
provider, the individual is still not a visitor for purposes of
paratransit in PQR County, if PQR is one of the counties with which
XYZ provides coordinated paratransit service.
     A visitor can become eligible in one of two ways.  The first
is to present documentation from his or her "home" jurisdiction's
paratransit system.  The local provider will give "full faith and
credit" to the ID card or other documentation from the other
entity.  If the individual has no such documentation, the local
provider may require the provision of proof of visitor status
(i.e., proof of residence somewhere else) and, if the individual's
disability is not apparent, proof of the disability (e.g., a letter
from a doctor or rehabilitation professional).  Once this
documentation is presented and is satisfactory, the local provider
will make service available on the basis of the individual's
statement that he or she is unable to use the fixed route transit
system.
     The local provider need serve someone based on visitor
eligibility for no more than 21 days.  After that, the individual
is treated the same as a local person for eligibility purposes. 
This is true whether the 21 days are consecutive or parceled out
over several shorter visits.  The local provider may require the
erstwhile visitor to apply for eligibility in the usual local
manner.  A visitor who expects to be around longer than 21 days
should apply for regular eligibility as soon as he arrives.The same
approach may be used for a service of requested visits totaling 21
days or more in a relating compact period of time.  Preferably,
this application process should be arranged before the visitor
arrives, by letter, telephone or fax, so that a complete
application can be processed expeditiously.  

37.129  Types of Service.

     The basic mode of service for complementary paratransit is 
demand responsive, origin-to-destination service.  This service may
be provided for persons in any one of the three eligibility
categories, and must always be provided to persons in the first
category (e.g., people who cannot navigate the system).  The local
planning process should decide whether, or in what circumstances,
this service is to be provided as door-to-door or curb-to-curb
service.
     For persons in the second eligibility category (e.g., persons
who can use accessible buses, but do not have an accessible bus
route available to take them to their destination),
origin-to-destination service can be used.  Alternatively, the
entity can provide either of two other forms of service.  One is
on-call bus, in which the individual calls the provider and
arranges for one or more accessible buses to arrive on the routes
he needs to use at the appropriate time.  On-call bus service must
meet all the service criteria of 37.131, except that on-call buses
run only on fixed routes and the fare charged can be only the fixed
route fare that anyone pays on the bus (including discounts).    
The second option is "feeder paratransit" to an accessible fixed
route that will take the individual to his or her destination. 
Feeder paratransit, again, would have to meet all the criteria of
37.131.  With respect to fares, the paratransit fare could be
charged. but the individual would not be double charged for the
trip.  That is, having paid the paratransit fare, the transfer to
the fixed route would be free.
     For persons in the third eligibility category (e.g., persons
who can use fixed route transit but who, because of a specific
impairment-related condition, cannot get to or from a stop), the
"feeder paratransit" option, under the conditions outlined above,
is available.  For some trips, it might be necessary to arrange for
feeder service at both ends of the fixed route trip.  Given the
more complicated logistics of such arrangements, and the potential
for a mistake that would seriously inconvenience the passenger, the
transit provider should consider carefully whether such a "double
feeder" system, while permissible, is truly workable in its system
(as opposed to a simpler system that used feeder service only at
one end of a trip when the bus let the person off at a place from
which he or she could independently get to the destination).  There
may be some situations in which origin to destination service is
easier and less expensive.

37.131  Service Criteria for Complementary Paratransit.

     Service Area   The basic bus system service area is a corridor
with a width of 3/4 of a mile on each side of each fixed route.  At
the end of a route, there is a semicircular "cap" on the corridor,
consisting of a three-quarter mile radius from the end point of the
route to the parallel sides of the corridor.                      
                                   Complementary paratransit must
provide service to any origin or destination point within a
corridor fitting this description around any route in the bus
system.   Note that this does not say that an eligible user must
live within a corridor in order to be eligible.
  If an individual lives outside the corridor, and can find a way
of getting to a pickup point within the corridor, the service must
pick him up there.  The same holds true at the destination end of
the trip. Another concept involved in this service criterion is the
core service area.  
     Imagine a bus route map of a typical city.  Color the bus
routes and their corridors blue, against the white outline map.  In
the densely populated areas of the city, the routes (which, with
their corridors attached, cut 1 1/2 mile swaths) merge together
into a solid blue mass.  There are few, if any, white spots left
uncovered, and they are likely to be very small.  Paratransit would
serve all origins and destinations in the solid blue mass.
     But what of the little white spots surrounded by various bus
corridors?  Because it would not make sense to avoid providing
service to such small isolated areas, the rule requires paratransit
service there as well.  So color them in too.
     Outside the core area, though, as bus routes follow radial
arteries into the suburbs and exurbs (we know real bus route maps
are more complicated than this, but we simplify for purposes of
illustration), there are increasingly wide white areas between the
blue corridors, which may have corridors on either side of them but
are not small areas completely surrounded by corridors.  These
white spaces are not part of the paratransit service area and the
entity does not have to serve origins and destinations there. 
However, if, through the planning process, the entity wants to
enlarge the width of one or more of the blue corridors from the 3/4
of a mile width, it can do so, to a maximum of 1 1/2 miles on each
side of a route.  The cost of service provided within such an
expanded corridor can be counted in connection with an undue
financial burden waiver request.
     There may be a part of the service area where part of one of
the corridors overlaps a political boundary, resulting in a
requirement to serve origins and destinations in a neighboring
jurisdiction which the entity lacks legal authority to service. 
The entity is not required to serve such origins and destinations,
even though the area on the other side of the political boundary is
within a corridor.  This exception to the service area criterion
does not automatically apply whenever there is a political
boundary, only when there is a legal bar to the entity providing
service on the other side of the boundary.
     The rule requires, in this situation, that the entity take all
practicable steps to get around the problem so that it can provide
service throughout its service area.  The entity should work with
the state or local governments involved, via coordination plans,
reciprocity agreements, memoranda or understanding or other means
to prevent political boundaries from becoming barriers to the
travel of individuals with disabilities. 
     The definition of the service area for rail systems is
somewhat different, though many of the same concepts apply.       
                                                                  
          Around each station on the line (whether or not a key
station), the entity would draw a circle with a radius of 3/4 mile. 
Some circles may touch or overlap.  The series of circles is the
rail system's service area.  (We recognize that, in systems where
stations are close together, this could result in a service area
that approached being a corridor like that of a bus line.)  The
rail system would provide paratransit service from any point in one
circle to any point in any other circle.  The entity would not have
to provide service to two points within the same circle, since a
trip between two points in the vicinity of the same station is not
a trip that typically would be taken by train.  Nor would the
entity have to provide service to spaces between the circles.  For
example, a train trip would not get close to point x; one would
have to take a bus or other mode of transportation to get from
station E or F to point x.  A paratransit system comparable to the
rail service area would not be required to take someone there
either.
     Rail systems typically provide trips that are not made, or
cannot be made conveniently, on bus systems.  For example, many
rail systems cross jurisdictional boundaries that bus systems often
do not.  One can travel from Station A to a relatively distant
Station E on a rail system in a single trip, while a bus trip
between the same points, if possible at all, may involve a number
of indirect routings and transfers, on two bus systems that may not
interface especially well.
     Rail operators have an obligation to provide paratransit
equivalents of trips between circles to persons who cannot use
fixed route rail systems because they cannot navigate the system,
because key stations or trains are not yet accessible, or because
they cannot access stations from points within the circles because
of a specific impairment-related condition.
   For individuals who are eligible in category 2 because they need
an accessible key station to use the system, the paratransit
obligation extends only to transportation among "circles" centered
on designated key stations (since, even when the key station plan
is fully implemented, these individuals will be unable to use
non-key stations). 
     It is not sufficient for a rail operator to refer persons with
disabilities to an accessible bus system in the area.  The
obligation to provide paratransit for a rail system is independent
of the operations of any bus system serving the same area, whether
operated by the same entity that operates the rail system or a
different entity.  Obviously, it will be advantageous for bus and
rail systems to coordinate their paratransit efforts, but a
coordinated system would have to ensure coverage of trips
comparable to rail trips that could not conveniently be taken on
the fixed route bus system.
     Response Time  

     Under this provision, an entity must make its reservation
service available during the hours its administrative offices are
open.  It those offices are open 9 to 5, those are the hours during
which the reservations service must be open, even if the entity's
transit service operated 6 a.m. to midnight.  On days prior to a
service day on which the administrative offices are not open at all
(e.g., a Sunday prior to a Monday service day), the reservation
service would also be open 9 to 5.  Note that the reservation
service on any day does not have to be provided directly by a "real
person."  An answering machine or other technology can suffice.
     Any caller reaching the reservation service during the 9 to 5
period, in this example, could reserve service for any time during
the next 6 a.m. to 12 midnight service day.  This is the difference
between "next day scheduling" and a system involving a 24-hour
prior reservation requirement, in which a caller would have to
reserve a trip at 7 a.m. today if he or she wanted to travel at 7
a.m. tomorrow.  The latter approach is not adequate under this
rule.
     The entity may use real time scheduling for all or part of its
service.  Like the Moliere character who spoke prose all his life
without knowing it, many entities may already be using some real
time scheduling (e.g., for return trips which are scheduled on a
when-needed basis, as opposed to in advance).  A number of transit
providers who have used real time scheduling believe that it is
more efficient on a per-trip basis and reduces cancellations and
no-shows significantly.  We encourage entities to consider this
form of service.
     Sometimes users want to schedule service well in advance, to
be sure of traveling when they want to.  The rule tells providers
to permit reservations to be made as much as 14 days in advance. 
In addition, though an entity may negotiate with a user to adjust
pickup and return trip times to make scheduling more efficient, the
entity cannot insist on scheduling a trip more than one hour
earlier or later than the individual desires to travel.  Any
greater deviation from desired trip time would exceed the bounds of
comparability.

     Fares

     To calculate the proper paratransit fare, the entity would
determine the route(s) that an individual would take to get from
his or her origin to his or her destination on the fixed route
system.  At the time of day the person was traveling, what is the
fare for that trip on those routes?  Applicable charges like
transfer fees or premium service charges may be added to the
amount, but discounts (e.g., the half-fare discount for off-peak
fixed route travel by elderly and handicapped persons) would not be
subtracted.  The transit provider could charge up to twice the
resulting amount for the paratransit trip.
     The mode through which paratransit is provided does not change
the method of calculation.  For example, if paratransit is provided
via user side subsidy taxi service rather than publicly operated
dial-a-ride van service, the cost to the user could still be only
twice the applicable fixed route fare.  The system operates the
same regardless of whether the paratransit trip is being provided
in place of a bus or a rail trip the user cannot make on the fixed
route system.  Where bus and rail systems are run by the same
provider (or where the same bus provider runs parallel local and
express buses along the same route), the comparison would be made
to the mode on which a typical fixed route user would make the
particular trip, based on schedule, length, convenience, avoidance
of transfers, etc. 
     Companions are charged the same fare as the eligible
individual they are accompanying.  Personal care attendants ride
free.
     One exception to the fare requirement is made for social
service agency (or other organization-sponsored) trips.  This
exception, which allows the transit provider to negotiate a price
with the agency that is more than twice the relevant fixed route
fare, applies to "agency trips," by which we mean trips which are
guaranteed to the agency for its use.  That is, if an agency wants
12 slots for a trip to the mall on Saturday for clients with
disabilities, the agency makes the reservation for the trips in its
name, the agency will be paying for the transportation, and the
trips are reserved to the agency, for whichever 12 people the
agency designates, the provider may then negotiate any price it can
with the agency for the trips.  We distinguish this situation from
one in which an agency employee, as a service, calls and makes an
individual reservation in the name of a client, where the client
will be paying for the transportation  

     Restrictions and Priorities Based on Trip Purpose 

This is a simple and straightforward requirement.  There can be no
restrictions or priorities based on trip purpose in a comparable
complementary paratransit system.  When a user reserves a trip, the
entity will need to know the origin, destination, time of travel,
and how many people are traveling.  The entity does not need to
know why the person is traveling, and should not even ask.

     Hours and Days of Service

     This criterion says simply that if a person can travel to a
given destination using a given fixed route at a given time of day,
an ADA paratransit eligible person must be able to travel to that
same destination on paratransit at that time of day.  This
criterion recognizes that the shape of the service area can change. 
Late at night, for example, it is common for certain routes not to
be run.  Those routes, and their paratransit corridors, do not need
to be served with paratransit when the fixed route system is not
running on them.  One couldn't get to destinations in that corridor
by fixed route at those times, so paratransit service is not
necessary either.
     It should be pointed out that service during low-demand times
need not be by the same paratransit mode as during higher usage
periods.  For example, if a provider uses its own paratransit vans
during high demand periods, it could use a private contractor or
user-side subsidy provider during low demand periods.  This would
presumably be a more efficient way of providing late night service. 
A call-forwarding device for communication with the auxiliary
carrier during these low demand times would be perfectly
acceptable, and could reduce administrative costs.

     Capacity Constraints

     This provision specifically prohibits two common mechanisms
that limit use of a paratransit systems so as to constrain demand
on its capacity.  The first is a waiting list.  Typically, a
waiting list involves a determination by a provider that it can
provide service only to a given number of eligible persons.  Other
eligible persons are not able to receive service until one of the
people being served moves away or otherwise no longer uses the
service.  Then the persons on the waiting list can move up.  The
process is analogous to the wait that persons in some cities have
to endure to be able to buy season tickets to a sold-out slate of
professional football games.  The second mechanism specifically
mentioned is a number limit on the trips a passenger can take in a
given period of time.It is a kind of rationing in which, for
example, if one has taken his quota of 30 trips this month, he
cannot take further trips for the rest of the month.
     In addition, this paragraph prohibits any operational pattern
or practice that significantly limits the availability of service
to ADA paratransit eligible persons.  As discussed under 37.125 in
the context of missed trips by passengers, a "pattern or practice"
involves, regular, or repeated actions, not isolated, accidental,
or singular incidents.   A missed trip, late arrival, or trip
denial now and then does not trigger this provision.
     Operational problems outside the control of the entity do not
count as part of a pattern or practice under this provision.  For
example, if the vehicle has an accident on the way to pick up a
passenger, the late arrival would not count as part of a pattern or
practice.  If something that could not have been anticipated at the
time the trip was scheduled (e.g., a snowstorm, an accident or
hazardous materials incident that traps the paratransit vehicle,
like all traffic on a certain highway, for hours), the resulting
missed trip would not count as part of a pattern or practice.  On
the other hand, if the entity regularly does not maintain its
vehicles well, such that frequent mechanical breakdowns result in
missed trips or late arrivals, a pattern or practice may exist. 
This is also true in a situation in which scheduling practices fail
to take into account regularly occurring traffic conditions (e.g.,
rush hour traffic jams), resulting in frequent late arrivals.    
     The rule mentions three specific examples of operational
patterns or practices that would violate this provision.  The first
is a pattern or practice of substantial numbers of significantly
untimely pickups (either for initial or return trips).  To violate
this provision, there must be both a substantial number of late
arrivals and the late arrivals in question must be significant in
length.  For example, a DOT Inspector General's (IG) report on one
city's paratransit system disclosed that around 30 percent of trips
were between one and five hours late.  Such a situation would
trigger this provision.  On the other hand, only a few instances of
trips one to five hours late, or many instances of trips a few
minutes late, would not trigger this provision.
     The second example is substantial numbers of trip denials or
missed trips.  For example, if on a regular basis the reservation
phone lines open at 5 a.m. and callers after 7 a.m. are all told
that they cannot travel, or the phone lines shut down after 7 a.m.
and a recorded message says to call back the next day, or the phone
lines are always so busy that no one can get through, this
provision would be triggered.  (Practices of this kind would
probably violate the response time criterion as well.)  Also, if,
on a regular basis, the entity misses a substantial number of trips
(e.g., a trip is scheduled, the passenger is waiting, but the
vehicle never comes, goes to the wrong address, is extremely late,
etc.), it would violate this provision. The third example is
substantial numbers of trips with excessive trip lengths.  Since
paratransit is a shared ride service, paratransit rides between
Point A and Point B will usually take longer, and involve more
intermediate stops, than a taxi ride between the same two points. 
However, when the number of intermediate stops and the total trip
time for a given passenger grows so large as to make use of the
system prohibitively inconvenient, then this provision would be
triggered.  For example, the IG report referred to above mentioned
a situation in which 9 percent of riders had one way trips
averaging between two and four hours, with an average of 16
intermediate stops.  Such a situation would probably trigger this
provision.
     Though these three examples probably cover the most frequently
cited problems in paratransit operations that directly or
indirectly limit the provision of service that is theoretically
available to eligible persons, the list is not exhaustive.  Other
patterns or practices could trigger this provision.  For example,
the Department has heard about a situation in which an entity's
paratransit contractor was paid on a per-trip basis, regardless of
the length of the trip. 
  The contractor therefore had an economic incentive to provide as
many trips as possible.  As a result, the contractor accepted short
trips and routinely denied longer trips.This would be a pattern or
practice contrary to this provision (and contrary to the service
area provision as well).

     Additional Service  

     This provision emphasizes that entities may go beyond the
requirements of this section in providing service to ADA
paratransit individuals.  For example, no one is precluded from
offering service in a larger service area, during greater hours
than the fixed route system, or without charge.  However,  costs of
such additional service do not count with respect to undue
financial burden waiver requests.  Where a service criterion itself
incorporates a range of actions the entity may take (e.g.,
providing wide corridors outside the urban core, using real time
scheduling), however, costs of providing that optional service may
be counted for undue financial burden waiver request purposes.

37.133  Subscription Service 

     As part of its paratransit service, an entity may include a
subscription service component.  However, at any given time of day,
this component may not absorb more than 50 percent of available
capacity on the total system.  For example, if, at 8 a.m., the
system can provide 400 trips, no more than 200 of these can be
subscription trips. The one exception to this rule would occur in
a situation in which there is excess non-subscription capacity
available.  For example, if over a long enough period of time to
establish a pattern, there were only 150 non-subscription trips
requested at 8 a.m., the provider could begin to provide 250
subscription trips at that time.  Subsequently, if non-subscription
demand increased over a period of time, such that the 50 trips were
needed to satisfy a regular non-subscription demand at that time,
and overall system capacity had not increased, the 50 trips would
have to be returned to the non-subscription category.  During times
of high subscription demand, entities could use the trip time
negotiation discretion of 37.131(c)(2) to shift some trips to
other times.
     Because subscription service is a limited subcomponent of
paratransit service, the rule permits restrictions to be imposed on
its use that could not be imposed elsewhere.  There may be a
waiting list for provision of subscription service or the use of
other capacity constraints.   Also, there may be restrictions or
priorities based on trip purpose.  For example, subscription
service during peak work trip times could be limited to work trips. 
We emphasize that these limitations apply only to subscription
service.  It is acceptable for a provider to put a person on a
waiting list for access to subscription service at 8 a.m. for work
trips; the same person could not be wait-listed for access to
paratransit service in general.

37.135  Submission of paratransit plans

     This section contains the general requirements concerning the
submission of paratransit plans.  Each public entity operating
fixed route service is required to develop and submit a plan for
paratransit service.  Where you send your plans depends on the type
of entity you are.  There are two categories of entities which
should submit their plans to states -- (1) UMTA recipients and (2)
entities who are administered by the state on behalf of UMTA.    
     These UMTA grantees submit their plans to the states because
the agency would like the benefit of the states' expertise before
final review.  The states' role is as a commenter,  not as a
reviewer. 
     This section section also specifies annual progress reports
concerning the meeting of previously approved milestones, any
slippage (with the reasons for it and plans to catch up), and any
significant changes in the operator's environment, such as the
withdrawal from the marketplace of a private paratransit provider
or whose service the entity has relied upon to provide part of its
paratransit service.
     Paragraph (d) of this section specifies a maximum time period
for the phase-in of the implementation of paratransit plans.   The
Department recognizes that it is not reasonable to expect
paratransit systems to spring into existence fully formed, like
Athena from the head of Zeus.  Under this paragraph, all entities
must be in full compliance with all paratransit provisions by
January 26, 1997, unless the entity has received a waiver from UMTA
based on undue financial burden (which applies only to the service
criteria of 37.131, not to eligibility requirements or other
paratransit provisions). 
     While the rule assumes that most entities will take a year to
fully implement these provisions, longer than a year requires the
paratransit plans to submit milestones that are susceptible to
objective verification.  Not all plans will be approved with a five
year lead-in period.  Consistent with the proposed rule, the
Department intends to look at each plan individually to see what is
required for implementation in each case.  DOT may approve only a
shorter phase-in period in a given case.

37.137 Paratransit Plan Development    
     
     Section 35.137 establishes three principal requirements in the
development of paratransit plans.  First is the requirement to
survey existing paratransit services within the service area.  This
is required by section 223(c)(8) of the ADA..  While the ADA falls
short of explicitly requiring coordination, clearly this is one of
the goals.  The purpose of the survey is to determine what is being
provided already, so that a transit provider can accurately assess
what additional service is needed to meet the service criteria for
comparable paratransit service.  The plan does not have to discuss
private paratransit providers whose services will not be used to
help meet paratransit requirements under this rule.  However, the
public entity will need to know specifically what services are
being provided by whom if the entity is to count the transportation
toward the overall need. Since the public entity is required to
provide paratransit to all ADA paratransit eligible individuals,
there is some concern that currently provided service may be cut
back or eliminated.  It is possible that this may happen and such
action would have a negative effect on transportation provided to
persons with disabilities in general.  The Department urges each
entity required to submit a plan to work with current providers of
transportation, not only to determine what transportation services
they provide, but also to continue to provide service into the
foreseeable future. 
     Second, 37.137 specifies requirements for public
participation.  First, the entity must perform outreach, to ensure
that a wide range of persons anticipated to use the paratransit
service know about and have the opportunity to participate in the
development of the plan.  Not only must the entity identify who
these individuals or groups are, the entity also must contact the
people at an early stage in the development process.
     The other public participation requirements are
straightforward.  There must be a public hearing and an opportunity
to comment.  The hearing must be accessible to those with
disabilities, and notice of the hearing must be accessible as well. 
There is a special efforts test identified in this paragraph for
comments concerning a multi-year phase-in of a paratransit plan. 
     The final general requirement of the section specifies that
efforts at public participation must be made permanent through some
mechanism that provides for participation in all phases of
paratransit plan development and submission.  The Department is not
requiring that there be an advisory committee established, although
this is one method of institutionalizing participation.  The
Department is not as interested in the specific structure used to
ensure public participation as we are interested in the
effectiveness of the effort.  The Department believes that public
participation is a key element in the effective implementation of
the ADA.  The ADA is an opportunity to develop programs that will
ensure the integration of all persons into not just the
transportation system of America, but all of the opportunities
transportation makes possible.  This opportunity is not without
tremendous challenges to the transit providers.  It is only through
dialogue, over the long term, that usable, possible plans can be
developed and implemented.

37.139 Plan Contents 

     This section contains substantive categories of information to
be contained in the paratransit plan:  information on current and
changing fixed route service; inventory of existing paratransit
service; discussion of the discrepancies between existing
paratransit and what is required under this regulation; a
discussion of the public participation requirements and how they
have been met; the plan for paratransit service; the budget for
paratransit services; efforts to coordinate with other
transportation providers; a description of the process in place or
to be used to register ADA paratransit eligible individuals; a
description of the documentation provided to each individual
verifying eligibility; and a request for a waiver based on undue
financial burden, if applicable.  The final rule contains a
reorganized and slightly expanded section on plan contents,
reflecting requests to be more explicit, rather than less explicit.
     The list of required elements is the same for all entities
required to submit paratransit plans.  There is no document length
requirement, however.  Each entity (or group plan) is unique and we
expect the plans to reflect this.  While we would like the plan
elements presented in the order listed in this section, the
contents most likely will vary greatly, depending on the size,
geographic area, budget, complexity of issues, etc. of the
particular submitting agency. This section and 37.139 provide for
a maximum phase-in period of five years, with an assumed one-year
phase-in for all paratransit programs.  (The required budget has
been changed to five years as well.)  The Department has
established a maximum five-year phase-in in the belief that not all
systems will require that long, but that some, particularly those
who had chosen to meet compliance with section 504 requirements
with accessible fixed route service, may indeed need five years. 
     We are confident that, through the public participation
process, entities can develop a realistic plan for full compliance
with the ADA.  To help ensure this, the paratransit plan contents
section now requires that any plan which projects full compliance
after January 26, 1993 must include milestones which can be
measured and which result in steady progress toward full
compliance.  For example, it is possible that the first part of
year one is used to ensure comprehensive registration of all
eligible persons with disabilities, training of transit provider
staffs and the development and dissemination of information to
users and potential users in accessible formats and some modest
increase in paratransit service is provided.  A plan would not be
permitted to indicate that no activity was possible in the first
year, but proportionately more progress could be planned for later
years than for the first year.  Implementation must begin in
January 1992.
     Each plan, including its proposed phase-in period, will be the
subject of examination by UMTA.  Not all providers who request a
five year phase-in will receive approval for a five-year phase-in. 
The plan must be careful, therefore, to explain what current
services are, what the projections are, and what methods are in
place to determine and provide accountability for progress toward
full compliance.
     We have been asked for assistance in assessing what the demand
for paratransit service will be.  UMTA's ADA Paratransit Manual
provides detailed assistance in this and many other areas of the
plan development process.
     The ADA itself contained a figure of 43 million persons with
disabilities.  It should be pointed out that many of these may not
necessarily be eligible for ADA paratransit service.  The
Department's regulatory impact analysis discussing the probable
costs involved in implementing this rule place the possible
percentage of population who would be eligible for paratransit
service at between 1.4 and 1.9 percent.  This figure can vary
depending on the type and variety of services you have available,
or on such things as climate, proximity to medical care, family,
etc. that a person with a disability may need.  Clearly estimating
demand is one of the most critical elements in the plan, since it
will be used to make decisions about all of the various service
criteria.
     Section 37.139 contains a new paragraph (j), spelling out in
more detail requirements related to the annual submission of plans. 
Since there is now the possibility for five-year phase-ins, the
annual plan demonstrates the progress made to date, and explains
any delays.

37.141. Requirements if a joint plan is submitted.

     The Department believes that, particularly in large,
multi-provider regions, a coordinated regional paratransit plan and
system are extremely important.  Such coordination can do much to
ensure that the most comprehensive transportation can be provided
with the most efficient use of available resources.  We recognize
that the effort of putting together such a coordinated system can
be a lengthy one.  This section is intended to facilitate the
process of forming such a coordinated system.
     If a number of entities wish to submit a joint plan for a
coordinated system, they must, like other entities, submit a
document by January 26, 1992.  At a minimum, this document must
include the following:
     (1) A general statement that the participating entities intend
to file a joint coordinated plan;
     (2) A certification from each participating entity that it is
committed to providing paratransit as a part of a coordinated plan;
     (3) A certification from each participating entity that it
will maintain at least current levels of paratransit service until
the coordinated paratransit service called for by the joint plan is
implemented;
     (4) As many elements of the plan as possible.
     These provisions ensure that significant planning will
precede, and plan implementation will begin by, January 26, 1992,
without precluding entities from cooperating because it was not
possible to complete coordinating different public entities by that
date. The entities involved in a joint plan are required to submit
all elements of their plan by July 26, 1992.
     The final provision in the section notes that an entity may
later join a coordinated plan, even if it has filed its own plan on
January 26, 1992.  (An entity must submit its own plan by January
26, 1992, if it has not provided a certification of participation
in a joint plan.).  In this case, the entity must provide the
assurances and certifications required of all of the other
participating entities.  The Department fully expects that many
jurisdictions filing joint plans will be able to do so by January
26, 1992.  For those who cannot, the regulatory provision ensures
that there will be no decrease in paratransit service.   Further,
since we anticipate coordinated service areas to provide more cost
effective service, complete implementation of a joint plan could be
more rapid than if each entity was providing service on its own. 
     Entities submitting a joint plan do not have any longer than
any other entities to fully implement complementary paratransit
service.   In any case, all plans (joint or single) must be fully
implemented by January 26, 1997, absent a waiver for undue
financial burden. (which would, in the case of a joint plan, be
considered on a joint basis).

37.143 Paratransit Plan Implementation

     As already discussed under 37.135, the states will receive
UMTA recipient plans for section 18 recipients administered by the
State or any small urbanized area recipient of section 9 funds
administered by a state.  Public entities who do not receive UMTA
funds will  submit their plans  directly to the applicable Regional
Office (listed in Appendix B to the rule).
     The role of the state is to accept the plans on behalf of
UMTA, to ensure that all plans are submitted to it and forward the
plans, with any comments on the plans, to UMTA.  This comment is
very important for UMTA to receive, since states administer these
programs on behalf of UMTA.  Each state's specific knowledge of
UMTA grantees it administers will provide helpful information to
UMTA in making its decisions. The rule lists five questions the
states must answer when they forward the plans.  These questions
are gauged to capitalize on the working knowledge the states
possess on  the grantees.  UMTA will send a more specific letter of
instruction to each state explaining its role.

37.147 UMTA Review of Plans

     This provision spells out factors UMTA will consider in
reviewing each plan, including whether the submission is complete,
whether the plan complies with the substance of the ADA regulation,
whether the entity complied with the public participation
requirements in developing the plan, efforts by the entity to
coordinate with other entities in a plan submission, and any
comments submitted by the states.
     These elements are not the only items that will be reviewed by
UMTA.  Every portion of the plan will be reviewed and assessed for
compliance with the regulation.  This section merely highlights
those provisions thought most important by the Department.


37.151 Waiver for undue financial burden.

     The Department has adopted a five-year phase-in for
paratransit service.  Under this scheme, each entity required to
provide paratransit service will be able to design a phase-in of
its service specifically geared to local circumstances.  While all
jurisdictions will not receive approval for plans with a five year
phase-in,  each entity will be able to request what it needs based
on local circumstances.  Generally, the section allows an entity to
request a waiver at any time it determines that it will not be able
to meet a five-year phase-in or make measured progress toward its
full compliance date specified in its original plan.
     A waiver for undue financial burden should be requested if one
of the following circumstances applies.  First, when the entity
submits its first plan on January 26, 1992, if the entity knows it
will not be able to reach full compliance within five years, or if
the entity cannot make measured progress the first year it may
submit a waiver request.  The entity also should apply for a
waiver, if, during plan implementation, there are changed
circumstances which make it unlikely that compliance will be
possible.
     The concept of measured progress should be given its plain
meaning.  It is not acceptable to submit a plan which shows
significant progress in implementing a plan in years four and five,
but no progress in years one and two.  Similarly, the progress must
be susceptible to objective verification.  An entity cannot merely
"work toward" developing a particular aspect of a plan.     The
Department intends that undue burden waiver requests will be given
close scrutiny, and waiver will not be granted highly.  In
reviewing requests, however, as the legislative history indicates,
UMTA will look at the individual financial constraints within which
each public entity operates its fixed route system.
  "Any determination of undue financial burden cannot have assumed
the collection of additional revenues, such as those received
through increases in local taxes or legislative appropriations,
which would not have otherwise been made available to the fixed
route operator." (H.Rept. 101-485, Pt. 1, at 31) 

37.153 UMTA Waiver determination

     If the UMTA Administrator grants a waiver for undue financial
burden, the waiver will be for a specified period of time and the
Administrator will determine what the entity must do to meet its
responsibilities under the ADA,  Each determination will involve a
judgment of what is appropriate on a case-by-case basis.  Since
each waiver will be granted based on individual circumstances, the
Department does not deem it appropriate to specify a generally
applicable duration for a waiver.  When a waiver is granted, the
rule calls for entities to look first at limiting the number of
trips provided to each individual as a means of providing service
that does not create an undue burden.
  This capacity constraint, unlike manipulations of other service
criteria, will not result in a degradation of the quality of
service.  An entity intending to submit an undue burden waiver
request should take this approach into account in its planning
process.
     It should be noted that requiring an entity to provide
paratransit service at least during core hours along key routes is
one option that the Administrator has available in making a
decision about the service to be provided.  This requirement stems
from the statutory provision that the Administrator can require the
entity to provide a some minimum level of service, even if to do so
would be an undue financial burden.  Certainly part of a request
for a waiver could be a locally endorsed alternative to this
description of basic service. 
  The rule states explicitly the Administrator's discretion to
return the application for more information if necessary.         
                
  37.155 Factors in Decision to Grant an Undue Financial Burden
Waiver 

     Factors the Administrator will consider in making a decision
whether to grant an undue financial burden waiver request include
effects on current fixed route service, reductions in other
services, increases in fares, resources available to implement
complementary paratransit over the period of the plan, current
level of accessible service (fixed route and paratransit),
cooperation among transit providers, evidence of increased
efficiencies that have been or could be used,  any unique
circumstances that may affect the entity's ability to provide
paratransit service, the level of per capita service being
provided, both to the population as a whole and what is being or
anticipated to be provided to persons who are eligible and
registered to receive ADA paratransit service.
      This final element allows some measure of comparability,
regardless of the specific service criteria and should assist in a
general assessment of level of effort.  It is only the costs
associated with providing paratransit service to ADA-paratransit
eligible persons that can be counted in assessing whether or not
there is an undue financial burden.  Two cost factors are included
in the considerations which enhance the Administrator's ability to
assess real commitment to these paratransit provisions.
     First, the Department will allow a statistically valid
methodology for estimating number of trips mandated by the ADA.
While the regulation calls for a trip-by-trip determination of
eligibility, this provision recognizes that this is not possible
for some systems, particularly the larger systems.  Since only
those trips provided to a person when he or she is ADA eligible may
be counted in determining an undue financial burden, this provision
is necessary.
     Second, in determining costs to be counted toward providing
paratransit service, paragraph (b)(3) allows an entity to include
in its paratransit budget dollars to which it is legally entitled,
but which, as a matter of state or local funding arrangements, are
provided to another entity that is actually providing the
paratransit service.
     For example, a state government may provide a certain formula
allocation of the revenue from a certain tax to each jurisdiction
for use in providing transportation service at the local level. 
The funds, depending on local arrangements, may flow either to a
transit authority -- a regulated entity under this rule -- or to a
city or county government.  If the funds go to the transit
authority, they clearly may be counted in an undue burden
calculation.  In addition, however, this provision also allows
funds that flow through the city or county government to be counted
in the undue burden calculation, since they are basically the same
funds and should not be treated differently based on the accident
of previously-determined local arrangements.  On the other hand,
this provision does not allow funds of a private non-profit or
other organization who uses Department of Health and Human Services
grant or private contributions to be counted toward the entity's
financial commitment to paratransit.

  Subpart G - Provision of Service

37.161   Maintenance of accessible features - general 

     This section applies to all entities providing transportation
services, public and private.  It requires those entities to
maintain in operative condition those features or facilities and
equipment that make facilities and vehicles accessible to and
usable by individuals with disabilities.
     The ADA requires that, to the maximum extent feasible,
facilities be accessible to and usable by individuals with
disabilities.  This section recognizes that it is not sufficient to
provide features such as lift-equipped vehicles, elevators,
communications systems to provide information to people with vision
or hearing impairments, etc. if these features are not maintained
in a manner that enables individuals with disabilities to use them. 
Inoperative lifts or elevators, locked accessible doors, accessible
paths of travel that are blocked by equipment or boxes of materials
are not accessible to or usable by individuals with disabilities.
     The rule points out that temporary obstructions or isolated
instances of mechanical failure would not be considered violations
of the ADA or this rule.  Repairs must be made "promptly."  The
rule does not, and probably could not, state a time limit for
making particular repairs, given the variety of circumstances
involved.  However, repairing accessible features must be made a
high priority.  Allowing obstructions or out of order accessibility
equipment to persist beyond a reasonable period of time would
violate this Part, as would mechanical failures due to improper or
inadequate maintenance.  Failure of the entity to ensure that
accessible routes are free of obstruction and properly maintained,
or failure to arrange prompt repair of inoperative elevators,
lifts, or other accessibility-related equipment, would also violate
this part.
     The rule also requires that accommodations be made to
individuals with disabilities who would otherwise use an 
inoperative accessibility feature.  For example, when a rail system
discovers that an elevator is out of order, blocking access to one
of its stations, it could accommodate users of the station by
announcing the problem at other stations to alert passengers and
offer accessible shuttle bus service around the temporarily
inaccessible station.  If a public address system were out of
order, the entity could designate personnel to provide information
to customers with visual impairments.

37.163   Keeping vehicle lifts in operative condition - public
entities

     This section applies only to public entities.  Of course, like
vehicle acquisition requirements and other provisions applying to
public entities, these requirements also apply when private
entities "stand in the shoes" of public entities in contracting
situations, as provided in 37.23.
     This section's first requirement is that the entity establish
a system of regular and frequent maintenance checks of lifts
sufficient to determine if they are operative.
     Vehicle and equipment maintenance is an important component of
successful accessible service.  In particular, an aggressive
preventive maintenance program for lifts is essential.  Lifts
remain rather delicate pieces of machinery, with many moving parts,
which often must operate in a harsh environment of potholes, dust
and gravel, variations in temperature, snow, slush, and deicing
compounds.  It is not surprising that they sometimes break down. 
The point of a preventive maintenance program is to prevent
breakdowns, of course.  But it is also important to catch broken
lifts as soon as possible, so that they can be repaired promptly.
Especially in a bus system with relatively low lift usage, it is
possible that a vehicle could go for a number of days without
carrying a passenger who uses the lift.  It is highly undesirable
for the next passenger who needs a lift to be the person who
discovers that the lift is broken, when a maintenance check by the
operator could have discovered the problem days earlier, resulting
in its repair. 
     Therefore, the entity must have a system for regular and
frequent checks, sufficient to determine if lifts are actually
operative.  This is not a requirement for cycling the lift daily.
(Indeed, it is not, as such, a requirement for lift cycling at all. 
If there is another means available of checking the lift, it may be
used.)  If alternate day checks, for example, are sufficient to
determine that lifts are actually working, then they are permitted. 
If a lift is used in service on a given day, that may be sufficient
to determine that the lift is operative with respect to the next
day.  It would be a violation of this part, however, for the entity
to neglect to check lifts regularly and frequently, or to exhibit
a pattern of lift breakdowns in service resulting in stranded
passengers when the lifts had not been checked before the vehicle
failed to provide required accessibility to passengers that day. 
     When a lift breaks down in service, the driver must let the
entity know about the problem by the most immediate means
available.  If the vehicle is equipped with a radio or telephone,
the driver must call in the problem on the spot.  If not, then the
driver would have to make a phone call at the first opportunity
(e.g., from a phone booth during the turnaround time at the end of
a run).  It is not sufficient to wait until the end of the day and
report the problem when the vehicle returns to the barn.    When a
lift is discovered to be inoperative, either because of an
in-service failure or as the result of a maintenance check, the
entity must take the vehicle out of service before the beginning of
its next service day (with the exception discussed below) and
repair the lift before the vehicle is put back into service.  In
the case of an in-service failure, this means that the vehicle can
continue its runs on that day, but cannot start a new service day
before the lift is repaired.  If a maintenance check in the evening
after completion of a day's runs or in the morning before a day's
runs discloses the problem, then the bus would not go into service
until the repair had taken place.
     The Department realizes that, in the years before bus fleets
are completely accessible, taking buses with lifts out of service
for repairs in this way would probably result in an inaccessible
spare bus being used on the route, but at least attention would
have to paid quickly to the lift repair, resulting in a quicker
return to service of a working accessible bus.
     The rule provides an exception for those situations in which
there is no spare vehicle (either accessible or inaccessible)
available to take the place of the vehicle with an operative lift,
such that putting the latter vehicle into the shop would result in
a reduction of service to the public (e.g., a scheduled run on a
route could not be made).  The Department would emphasize that the
exception does not apply when there is any spare vehicle available.
     Where the exception does apply, the provider may keep the
vehicle with the inoperative lift in service for a maximum of three
days (for providers operating in an area of over 50,000 population)
or five days (for providers operating in an area of 50,000
population or less).  After these times have elapsed, the vehicle
must go into the shop, not to return to service until the lift is
repaired.  Even during the three or five-day period, if an
accessible spare bus becomes available at any time, it must be used
in place of the bus with the inoperative lift or an inaccessible
spare that is being used in its place.
     In a fixed route system, if a bus is operating without a
working lift (either on the day when the lift fails in service or
as the result of the exception discussed above) and headways
between accessible buses on the route on which the vehicle is
operating exceed 30 minutes, the entity must accommodate passengers
who would otherwise be inconvenienced by the lack of an accessible
bus.  This accommodation would be by a paratransit or other special
vehicle that would pick up passengers with disabilities who cannot
use the regular bus because its lift is inoperative.  Passengers
who need lifts in this situation would, in effect, be ADA
paratransit eligible under the second eligibility category. 
However, since they would have no way of knowing that the bus they
sought to catch would not be accessible that day, the transit
authority must actively provide alternative service to them.  This
could be done, for example, by having a "shadow" accessible service
available along the route or having the bus driver call in the
minute he saw an accessible passenger he could not pick up
(including the original passenger stranded by an in-service lift
failure), with a short (i.e., less than 30-minute) response from an
accessible vehicle dispatched to pick up the stranded passenger. 
To minimize problems in providing such service, when a transit
authority is using the "no spare vehicles" exception, the entity
could place the vehicle with the inoperative lift on a route with
headways between accessible buses shorter than 30 minutes.  

37.165   Lift and Securement Use.

     This provision applies to both public and private entities. 
All people using common wheelchairs (an inclusive term for mobility
devices that fit on lifts meeting Access Board guideline dimensions
-- 30" by 48" and a maximum of 600 pounds for device and user
combined -- which includes three-wheeled scooters and other
so-called non-traditional mobility devices) are to be allowed to
ride the entity's vehicles.
     Entities may require wheelchair users to ride in designated
securement locations.   That is, the entity is not required to
carry wheelchair users whose wheelchairs would have to park in an
aisle or other location where they could obstruct other persons'
passage or where they could not be secured or restrained.  An
entity's vehicle is not required to pick up a wheelchair user when
the securement locations are full, just as the vehicle may pass by
other passengers waiting at the stop if the bus is full.    The
entity may require that wheelchair users make use of securement
systems for their mobility devices.
   The entity, in other words, can require wheelchair users to
"buckle up" their mobility devices.  The entity is required, on a
vehicle meeting Part 38 standards, to use the securement system to
secure wheelchairs as provided in that Part.  On other vehicles
(e.g., existing vehicles with securement systems which do not
comply with Part 38 standards), the entity must provide and use a
securement system to ensure that the mobility device remains within
the securement area.  This latter requirement is a mandate to use
best efforts to restrain or confine the wheelchair to the
securement area.  The entity does the best it can, given its
securement technology and the nature of the wheelchair.  The
Department encourages entities with relatively less adequate
securement systems on their vehicles, where feasible, to retrofit
the vehicles with better securement systems, that can successfully
restrain a wide variety of wheelchairs.   It is our understanding
that the cost of doing so is not enormous.
     An entity may not, in any case, deny transportation to a
common wheelchair and its user because the wheelchair cannot be
secured or restrained by a vehicle's securement system, to the
entity's satisfaction.
     Entities have often recommended or required that a wheelchair
user transfer out of his or her own device into a vehicle seat. 
Under this rule, it is no longer permissible to require such a
transfer.  The entity may provide information on risks and make a
recommendation with respect to transfer, but the final decision on
whether to transfer is up to the passenger.  The entity's personnel
have an obligation to ensure that a passenger with a disability is
able to take advantage of the accessibility and safety features on
vehicles.  Consequently, the driver or other personnel must provide
assistance with the use of lifts, ramps, and securement devices. 
For example, the driver must deploy the lift properly and safely. 
If the passenger cannot do so independently, the driver must assist
the passenger with using the securement device.  On a vehicle which
uses a ramp for entry, the driver may have to assist in pushing a
manual wheelchair up the ramp (particularly where the ramp slope is
relatively steep).All these actions may involve a driver leaving
his seat.  Even in entities whose drivers traditionally do not
leave their seats (e.g., because of labor-management agreements or
company rules), this assistance must be provided.  This rule
overrides any requirements to the contrary.
     Wheelchair users -- especially those using electric
wheelchairs -- often have a preference for entering a lift platform
and vehicle in a particular direction (e.g., backing on or going on
frontwards).  Except where the only way of successfully maneuvering
a device onto a vehicle or into its securement area, or an
overriding safety concern (i.e., a direct threat) requires one way
of doing this or another, the transit provider should respect the
passenger's preference.  We note that most electric wheelchairs are
usually not equipped with rearview mirrors, and that many persons
who use them are not able to rotate their heads sufficiently to see
behind them.
  When an electric wheelchair must back up a considerable distance,
this can have unfortunate results for other people's toes.  People
using canes or walkers and other standees with disabilities who do
not use wheelchairs but have difficulty using steps (e.g., an
elderly person who can walk on a plane without use of a mobility
aid but cannot raise his or her legs sufficiently to climb bus
steps) must also be permitted to use the lift, on request.

37.167  Other Service Requirements.

     The requirements in this section apply to both public and
private entities.   On fixed route systems, the entity must
announce stops.  These stops include transfer points with other
fixed routes.  This means that any time a vehicle is to stop where
a passenger can get off and transfer to another bus or rail line
(or to another form of transportation, such as commuter rail or
ferry), the stop would be announced.  The announcement can be made
personally by the vehicle operator or can be made by a recording
system.
  If the vehicle is small enough so that the operator can make
himself or herself heard without a P.A. system, it is not necessary
to use the system.  Announcements also must be made at major
intersections or destination points.  The rule does not define what
major intersections or destination points are.  This is a
judgmental matter best left to the local planning process.  In
addition, the entity must make announcements at sufficient
intervals along a route to orient a visually impaired passenger to
his or her location.  The other required announcements may serve
this function in many instances, but if there is a long distance
between other announcements, fill-in orientation announcements
would be called for. The entity must announce any stop requested by
a passenger with a disability, even if it does not meet any of the
other criteria for announcement.
     When vehicles from more than one route serve a given stop or
station, the entity must provide a means to assist an individual
with a visual impairment or other disability in determining which
is the proper vehicle to enter.  Some entities have used external
speakers.  UMTA is udnertaking a study to determine what is the
best available technology in this area.  Some transit properties
have used colored mitts, or numbered cards, to allow passengers to
inform drivers of what route they wanted to use.  The idea is to
prevent, at a stop where vehicles from a number of routes arrive,
a person with a visual impairment from having to ask every driver
whether the bus is the right one.  The rule does not prescribe what
means is to be used, only that some effective means be provided. 
Service animals shall always be permitted to accompany their users
in any private or public transportation vehicle or facility.  One
of the most common misunderstandings about service animals is that
they are limited to being guide dogs for persons with visual
impairments.  Dogs are trained to assist people with a wide variety
of disabilities, including individuals with hearing and mobility
impairments.  Other animals (e.g., monkeys) are sometimes used as
service animals as well.  In any of these situations, the entity
must permit the service animal to accompany its user.
     Part 38 requires a variety of accessibility equipment.  This
section requires that the entity use the equipment it has.  For
example, it would be contrary to this provision for a transit
authority to bolt its bus lifts shut because the transit authority
had difficulty maintaining the lifts.  It does little good to have
a public address system on a vehicle if the operator does not use
it to make announcements (except, as noted above, in the situation
where the driver can make himself or herself heard without recourse
to amplification.)
     Entities must make communications and information available,
using accessible formats and technology (e.g., Braille, large
print, TDDs) to obtain information about transportation services. 
Someone cannot adequately use the bus system if schedule and route
information is not available in a form he or she can use.  If there
is only one phone line on which ADA paratransit eligible
individuals can reserve trips, and the line is chronically busy,
individuals cannot schedule service.  Such obstacles to the use of
transportation service are contrary to this section.  (The latter
could, in some circumstances, be viewed as a capacity constraint.)
     It is inconsistent with this section for a transit provider to
refuse to let a passenger use a lift at any designated stop, unless
the lift if physically unable to deploy or the lift would be
damaged if it did deploy.(see discussion under 37.123).  In
addition, if a temporary situation at the stop (e.g., construction,
an accident, a landslide) made the stop unsafe for anyone to use,
the provider could decline to operate the lift there (just as it
refused to open the door for other passengers at the same point). 
The provider could not, however, declare a stop "off limits" to
persons with disabilities that is used for other persons.  If the
transit authority has concerns about barriers or safety hazards
that peculiarly affect individuals with disabilities that would use
the stop, it should consider making efforts to move the stop.    
Under DOT hazardous materials rules, a passenger may bring a
portable medical oxygen supply on board a vehicle.  Since the
hazardous materials rules permit this, transit providers cannot
prohibit it.  For further information on hazardous materials rules,
as they may affect transportation of assistive devices, entities
may contact the Department's Research and Special Programs
Administration, Office of Hazardous Materials Transportation
(202-366-0656).
     One concern that has been expressed is that transportation
systems (particularly some rail systems) may make it difficult for
persons with disabilities to board or disembark from vehicles by
very rapidly closing doors on the vehicles before individuals with
disabilities (who may move more slowly through crowds in the
vehicle or platform than other persons) have a chance to get on or
off the vehicle.  Doing so is contrary to the rule; operators must
make appropriate provision to give individuals with disabilities
adequate time to board or disembark.

37.169  Interim Requirements for Over-the-Road Bus Service
Operated by Private Entities. 

     Private over-the-road-bus (OTRB) service is, first of all,
subject to all the other private entity requirements of the rule. 
The requirements of this section are in addition to the other
applicable provisions.
     Boarding assistance is required.  The Department cannot
require any particular boarding assistance devices at this time. 
Each operator may decide what mode of boarding assistance is
appropriate for its operation.  We agree with the discussion in the
DOJ Title II rule's preamble that carrying is a disfavored method
of providing assistance to an individual with a disability. 
However, since accessible  private OTRBs cannot be required by this
rule, there may be times when carrying is the only available means
of providing access to an OTRB, if the entity does not exercise its
discretion to provide an alternative means.  It is required by the
rule that any employee who provides boarding assistance -- above
all, who may carry or otherwise directly physically assist a
passenger   -- must be trained to provide this assistance
appropriately and safely.
     The baggage priority provision for wheelchairs and other
assistive devices involves a similar procedure to that established
in the Department's Air Carrier Access Act rule (14 CFR Part 382). 
In brief, it provides that, at any given stop, a person with a
wheelchair or other assistive device would have the device loaded
before other items at this stop.  An individual traveling with a
wheelchair is not similarly situated to a person traveling with
luggage.  For the wheelchair user, the wheelchair is an essential
mobility device, without which travel is impossible.  The rationale
of this provision is that, while no one wants his or her items left
behind, carrying the wheelchair is more important to its user than
ordinary luggage to a traveler.  If it comes to an either/or choice
(the wheelchair user's luggage would not have any priority over
other luggage, however).  There would be no requirement, under this
provision, for "bumping" baggage already on the bus from previous
stops in order to make room for the wheelchair.
     The entity could require advance notice from a passenger in
only one circumstance.  If a passenger needed boarding assistance,
the entity could require up to 48 hours' advance notice for the
purpose of providing needed assistance.  While advance notice
requirements are generally undesirable, this appears to be a case
in which a needed accommodation may be able to be provided
successfully only if the transportation provider knows in advance
that some extra staffing is needed to accomplish it.  While the
primary need for advance notice appears to be in the situation of
an unstaffed station, there could be other situations in which
acvance notice was needed in order to ensure that the accommodation
could be made.  Entities should not ask for advance notice in all
cases, but just in those cases in which it is really needed for
this purpose.  Even if advance notice is not provided, the entity
has the obligation to provide boarding assistance if it can be
provided with available staff.

37.171  Equivalency Requirement for Demand Responsive Service
Operated by Private Entities Not Primarily in the Business of
Transporting People.

     This provision is a service requirement closely related to the
private entity requirements for 37.101 - 37.105 of this Part. 
Entities in this category are always required to provide equivalent
service, regardless of what they are doing with respect to the
acquisition of vehicles.  The effect of this provision may be to
require some entities to arrange, either through acquiring their
own accessible vehicles or coordinating with other providers, to
have accessible vehicles available to meet the equivalency
standards of 37.105 or otherwise to comply with those standards.

37.173  Training

     A well-trained work force is essential in ensuring that the
accessibility-related equipment and accommodations required by the
ADA actually result in the delivery of good transportation service
to individuals with disabilities.  The utility of training was
recognized by Congress as well.  (See  S. Rept. 100-116 at 48.)  At
the same time, we believe that training should be conducted in an
efficient and effective manner, with appropriate flexibility
allowed to the organizations that must carry it out. Each
transportation provider is to design a training program which suits
the needs of its particular operation.  While we are confident of
this approach, we are mindful that the apparent lack of training
has been a source of complaint to UMTA and transit providers.  Good
training is difficult and it is essential.
     Several points of this section deserve emphasis.  First, the
requirements for training apply to private as well as to public
providers, of demand responsive as well as of fixed route service. 
Training is just as necessary for the driver of a taxi cab, a hotel
shuttle, or a tour bus as it is for a driver in an UMTA-funded city
bus system.
     Second, training must be to proficiency.  The Department is
not requiring a specific course of training or the submission of a
training plan for DOT approval.  However, every employee of a
transportation provider who is involved with service to persons
with disabilities must have been trained so that he or she knows
what needs to be done to provide the service in the right way. 
When it comes to providing service to individuals with
disabilities, ignorance is no excuse for failure.
     While there is no specific requirement for recurrent or
refresher training, there is an obligation to ensure that, at any
given time, employees are trained to proficiency.  An employee who
has forgotten what he was told in past training sessions, so that
he or she does not now what needs to be done to serve individuals
with disabilities, does not meet the standard of being trained to
proficiency.
     Third, training must be appropriate to the duties of each
employee.  A paratransit dispatcher probably must know how to use
a TDD and enough about various disabilities to know what sort of
vehicle to dispatch.  A bus driver must know how to operate lifts
and securement devices properly.  A mechanic who works on lifts
must know how to maintain them.  Cross-training, while useful in
some instances, is not required, so long as each employee is
trained to proficiency in what he or she does with respect to
service to individuals with disabilities.
     Fourth, the training requirement goes both to technical tasks
and human relations.  Employees obviously need to know how to run
equipment the right way.  If an employee will be assisting
wheelchair users in transferring from a wheelchair to a vehicle
seat, the employee needs training in how to do this safely.  But
every public contact employee also has to understand the necessity
of treating individuals with disabilities courteously and
respectfully, and the details of what that involves.
     One of the best sources of information on how best to train
personnel to interact appropriately with individuals with
disabilities is the disability community itself.  Consequently, the
Department urges entities to consult with disability organizations
concerning how to train their personnel.  Involving these groups in
the process of establishing training programs, in addition to
providing useful information, should help to establish or improve
working relationships among transit providers and disability groups
that, necessarily, will be of long duration.  We note that  several
transit providers use persons with disabilities to provide the
actual training.  Others have reported that role playing is an
effective method to instill an appreciation of the particular
perspective of one traveling with a disability.
     Finally, one of the important points in training concerns
differences among individuals with disabilities.  All individuals
with disabilities, of course, are not alike.  The appropriate ways
one deals with persons with various kinds of disabilities (e.g.,
mobility, vision, hearing, or mental impairments) are likely to
differ and, while no one expects bus drivers to be trained as
disability specialists, recognizing relevant differences and
responding to them appropriately is extremely significant.  Public
entities who contract with private entities to have service
provided -- above all, complementary paratransit -- are responsible
for ensuring that contractor personnel receive the appropriate
training.9.
  Title 49, Code of Federal Regulations, is amended by adding a new
Part 38, to read as follows:                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            