Federal Register / Vol. 61, No. 99 / Tuesday, May 21, 1996 / Rules and Regulations 25409

provides that no funds available to DoD

may be provided by contract or contract

modification, nor may contract

payments be made, to an institution of

higher education that has a policy of

denying or that effectively prevents the

Secretary of Defense from obtaining for

military recruiting purposes—

(A) Entry to campuses or access to

students on campuses; or

(B) Access to directory information

pertaining to students. (See 209.470.)

(iii) Pursuant to 10 U.S.C. 983, no

funds may be obligated by contract or

contract modification to an institution

of higher education that has an antiROTC policy. (See 209.470.)

[FR Doc. 96–12766 Filed 5–20–96; 8:45 am]

BILLING CODE 5000–04–M

48 CFR Part 242

[DFARS Case 96–D007]

Defense Federal Acquisition

Regulation Supplement; Direct

Submission of Vouchers to Disbursing

Office

AGENCY: Department of Defense (DOD).

ACTION: Final rule.

SUMMARY: The Director of Defense

Procurement is amending the Defense

Federal Acquisition Regulation

Supplement (DFARS) to allow the

contract auditor to authorize direct

submission of interim vouchers for

provisional payment to the disbursing

office, for contractors with approved

billing systems.

EFFECTIVE DATE: May 21, 1996.

FOR FURTHER INFORMATION CONTACT: Rick

Layser, PDUSD(A&T)DP(DAR), IMD

3D139, 3062 Defense Pentagon,

Washington, DC 20301–3062. Telefax

(703) 602–0350. Please cite DFARS Case

96–D007.

SUPPLEMENTARY INFORMATION:

A. Background

This final rule amends DFARS

242.803 to reduce unnecessary review

and approval, by the contract auditor, of

interim vouchers for provisional

payment under DoD contracts.

B. Regulatory Flexibility Act

This final rule does not constitute a

significant DFARS revision within the

meaning of FAR 1.501 and Public Law

98–577 and publication for public

comment is not required. Therefore, the

Regulatory Flexibility Act does not

apply. However, comments from small

entities concerning the affected DFARS

subpart will be considered in

accordance with 5 U.S.C. 610. Such

comments should cite DFARS Case 96–

D007 in correspondence.

C. Paperwork Reduction Act

This rule does not impose any new

information collection requirements

which require the approval of the Office

of Management and Budget under 44

U.S.C. 3501, et seq.

List of Subjects in 48 CFR Part 242

Government procurement.

Michele P. Peterson,

Executive Editor, Defense Acquisition

Regulations Council.

Therefore, 48 CFR Part 242 is

amended as follows:

PART 242—CONTRACT

ADMINISTRATION

1. The authority citation for 48 CFR

Part 242 continues to read as follows:

Authority: 41 U.S.C. 421 and 48 CFR

Chapter 1.

2. Section 242.803 is amended by

redesignating paragraphs (b)(i)(C) and

(b)(i)(D) as paragraphs (b)(i)(D) and

(b)(i)(E), respectively, and by adding a

new paragraph (b)(i)(C) to read as

follows:

242.803 Disallowing costs after

incurrence.

* * * * *

(b) * * *

(i) * * *

(C) Authorizing direct submission of

interim vouchers for provisional

payment to the disbursing office for

contractors with approved billing

systems.

* * * * *

[FR Doc. 96–12765 Filed 5–20–96; 8:45 am]

BILLING CODE 5000–04–M

DEPARTMENT OF TRANSPORTATION

Office of the Secretary

49 CFR Parts 37 and 38

[Docket No. 49658]

RIN 2105–AC13

Transportation for Individuals With

Disabilities

AGENCY: Department of Transportation

(DOT), Office of the Secretary.

ACTION: Final rule.

SUMMARY: The Department is amending

several provisions of its rules

implementing the Americans with

Disabilities Act (ADA). Some of the

changes are being made in response to

petitions received by the Department.

The first change will ensure that the

rule treats independent private schools

similarly to other schools. The second

change will apply the same gap

standard to high speed automated

guideway transit (AGT) systems as is

applied to other rapid and light rail

systems. The third petition granted in

this rule will give local jurisdictions

more discretion with respect to advance

reservation systems for paratransit

services. However, the Department is

withdrawing a proposal that would have

permitted transit authorities to

determine that certain bus stops may be

designated as non-accessible stops.

This rule will also make six

amendments that derive from the

Department’s own proposals. The first

will decrease the paperwork burden of

producing annual paratransit plan

updates once the paratransit system

reaches full compliance with ADA

regulations. The second will clarify a

visitor’s eligibility for paratransit

services. The third will clarify the

vehicle acquisition requirements for

private entities not primarily engaged in

the business of transporting people. The

fourth amendment will remove

‘‘inability to comply’’ as a condition of

gaining a determination of equivalent

facilitation. The final two amendments

will eliminate confusion in a cross

reference within the regulation and

correct a typographical error. The

Department has concluded that no

change is warranted in the regulatory

definition of a personal care attendant.

EFFECTIVE DATE: This final rule is

effective June 20, 1996.

FOR FURTHER INFORMATION CONTACT:

Robert C. Ashby, Deputy Assistant

General Counsel for Regulation and

Enforcement, Department of

Transportation, 400 7th Street, SW.,

Room 10424, Washington, DC 20590.

(202) 366–9306 (voice); (202) 755–7687

(TDD); or Richard Wong, Office of Chief

Counsel, Federal Transit

Administration, same street address,

Room 9316. (202) 366–4011.

SUPPLEMENTARY INFORMATION:

I. Introduction

The Department published its notice

of proposed rulemaking (NPRM) on the

issues covered by this rule on July 21,

1994. The NPRM included proposed

amendments that were petitioned for by

the public on which the Department

took no initial position and proposals

that the Department generated

internally. The Department received

over 275 comments on the NPRM, most

of which came from individuals with

disabilities, organizations representing

them and transit authorities. Additional
25410 Federal Register / Vol. 61, No. 99 / Tuesday, May 21, 1996 / Rules and Regulations

comments were received from state

disability advocates, engineering

groups, paratransit providers and

equipment manufacturers, as well as

others.

II. Petitions for Rulemaking

1. Bus Stops

This issue, raised in the NPRM on the

basis of a petition from Seattle Metro,

was the most controversial in the

rulemaking. Disability community

commenters were virtually unanimous

in strongly opposing Seattle’s suggestion

that transit authorities be authorized to

declare a bus stop ‘‘off limits’’ to

wheelchair users, or in some cases, to

all lift users, on the basis that conditions

at the stop made its use too dangerous

for such passengers. These commenters

included disability advocacy

organizations, individuals, the U.S.

Department of Justice, and state and

local government agencies. A few transit

agencies also shared their point of view.

The first point these commenters

made was that individuals with

disabilities—not transit agencies—

should decide when a given stop is

appropriate for them to use. Individuals

with disabilities know their own

abilities better than anyone else, and

can make reasonable choices about what

is or is not safe for them. Allowing other

parties, such as transit agencies, to make

these choices smacks of paternalism and

is the sort of well-intended constraint

on the activities of persons with

disabilities that the ADA is specifically

intended to prevent. Providing

discretion to transit authorities to deny

to passengers with disabilities the use of

facilities that other passengers are

allowed to use is a clear violation of the

ADA’s nondiscrimination mandate,

many commenters said.

What made the proposal additionally

objectionable, many of these

commenters said, was that there was no

empirical evidence that there was a

significant safety problem at bus stops.

There might be speculation that a safety

problem existed, and worry about

potential liability, but there were few, if

any, facts presented that the problem

was real. When there is a

nondiscrimination mandate like that of

the ADA, any classification that denies

services to the protected class must be

based on demonstrated facts, they said,

not on fear. Many of these commenters

pointed to the ADA’s ‘‘direct threat’’

concept as a model for determining

when it is acceptable to deny services or

facilities to individuals with disabilities

based on a safety risk. This concept,

they noted, focuses on the individual

situation of each disabled person, not on

the presumed abilities of a class of

persons with disabilities.

Finally, a number of these

commenters noted that, if individuals

are denied use of stops, they will

become eligible for paratransit, which

will increase costs to transit authorities.

There could also be situations in which

people would be denied service

altogether because of limited capacity

on paratransit systems, one commenter

noted. (Two transit authority

commenters said, on the other hand,

that transit authorities’ desire to avoid

adding to paratransit costs would be a

deterrent to abuse of discretion to limit

passengers’ use of unsafe stops.)

Many disability community

commenters, and several transit

authorities as well, opposed the

petition’s suggestion that the standard

for determining the suitability of a stop

for disabled passengers be the new

construction standard for bus stops in

the Americans with Disabilities Act

Accessibility Guidelines (AADAG). This

standard, they said, was of questionable

relevance to streetside bus stops in mass

transit systems, and was inappropriate

for use in a situation involving existing

facilities in any event. The obligation

that public entities have for existing

facilities, they noted, is to make them

program accessible, not necessarily to

bring them up to new construction

standards. The new construction

standard was never intended to be a

safety standard, or a criterion to

determine when an individual with

disabilities would be allowed to use a

facility. The petitioner was the only

commenter to support the proposal to

use the new construction standard.

A large majority of the transit

providers that commented supported

the idea that they should have

discretion to declare stops ‘‘off limits’’

to lift users on the basis of safety.

Because some stops had hazards that

affect passengers with disabilities in

ways that other passengers are not

affected (e.g., stops that have a narrow

area for maneuvering that present a

problem to wheelchair users but not

ambulatory persons, stops with a dropoff that can result in a wheelchair

overturning), it is rational to prevent

accidents and injuries by denying use of

these stops to persons for whom the

hazards are serious. Concern about

liability was another reason advanced

by many transit commenters. Seattle

said it had experienced seven accidents

because of bus stop problems since

1987, including one serious injury that

resulted in a settlement of over

$400,000.

While the transit community

generally supported Seattle’s petition,

there were a number of interesting

nuances in transit provider comments.

Some emphasized the necessity of

working with the disability community

on bus stop access issues, including

public hearings or other opportunities

for public participation. Improving or

moving existing bus stops was a step

mentioned by others. Differences among

buses and passengers need to be taken

into consideration, others said.

Prodding the Department of Justice to

issue regulations requiring local

governments to work on making bus

stops under their control program

accessible was another suggestion.

Better training for drivers on how to

deploy lifts safely in a variety of

situations was also recommended. Some

commenters also mentioned (but

apparently did not favor) the possibility

of closing stops to all passengers if they

were not safely usable by passengers

with disabilities.

This is a case in which both sides of

the debate have genuine concerns. The

petitioner and comments supporting its

position worry, in good faith, about

potential safety problems facing

wheelchair users at some bus stops and

about ensuing liability problems that

may result for transit providers. In the

absence of legal constraints on the use

of classifications based on disability, it

could arguably be rational for transit

providers to take the kind of action that

the petition proposes.

However, the ADA imposes strong

legal constraints on the use of

classifications based on disability.

Under the ADA, a proposed action

which treats a disability-based class of

persons differently from the rest of the

public cannot be accepted merely

because it may assuage a party’s good

faith concerns about safety. This is a

position that the Department has taken

consistently as it has developed and

implemented its ADA regulations.

For example, before and during the

development of Part 37, there was

considerable discussion of transit

providers’ good-faith safety concerns

about transporting three-wheeled

‘‘scooters.’’ Many commenters asserted

that these devices were unstable and

difficult to secure, and asked that transit

providers have the discretion to exclude

them on the basis of these safety-related

concerns. The Department required that

providers carry such mobility devices,

noting the absence of ‘‘information in

the record that would support a finding

that carrying non-traditional

wheelchairs would constitute a ‘direct

threat’ to the safety of others. * * *’’ (56

FR 45617; September 6, 1991).

Subsequently, transit community

commenters raised the issue of the use
Federal Register / Vol. 61, No. 99 / Tuesday, May 21, 1996 / Rules and Regulations 25411

of lifts by standees, which the original

version of Part 37 required. The

commenters expressed the concern that

standees could fall off the lifts or hit

their heads, resulting in injury to

passengers and liability for providers.

With one exception (concerning a

particular lift model that was no longer

being manufactured), there was little

information in the record demonstrating

that a real safety problem, as distinct

from speculation or fears concerning

potential safety problems, existed. The

Department rejected the proposal,

saying that—

[t]he ADA is a nondiscrimination statute,

intended to ensure * * * that people with

disabilities have access to transportation

services. To permit a transportation provider

to exclude a category of persons with

disabilities from * * * access to a vehicle on

the basis of a perceived safety hazard, absent

information in the record that the hazard is

real, would be inconsistent with the statute.

* * * While we understand the concerns of

transit agency commenters about the

potential safety risks that may be involved,

the Department does not have a basis in the

rulemaking record for authorizing a

restriction on lift use by standees. (58 FR

63096; November 30, 1993).

The Department’s analysis of the

Seattle petition is very similar to its

response to these two previous issues.

The petition presents a genuine, goodfaith concern that a certain condition

(here, terrain or other problems at

particular bus stops) may create a safety

hazard for a class of persons with

disabilities. There is, in the comments

favoring the petition, agreement that

difficult conditions at some stops might,

indeed, create some safety risks for

wheelchair users or other persons with

disabilities. But there is little in the

record to suggest that there is

substantial, pervasive, or strong

evidence that a real, as distinct from

speculative, safety problem exists.

To its credit, the petitioner attempted

to show the Department that problem

stops existed for which the petitioner’s

proposed remedy was needed. The

petitioner provided a videotaped

demonstration of wheelchair users

attempting to get on and off buses using

lifts at several problem stops. After

reviewing the tape, the Department

concluded that it is reasonable to

believe that at such stops, wheelchair

users may well have greater difficulty,

and take longer, in using bus lifts than

at other stops. In some of the situations,

there could be a higher risk to

wheelchair users than at other, more

‘‘normal,’’ stops. The Department does

not find this evidence sufficient,

however, to justify carving out an

exception to the nondiscrimination

mandate of the ADA.

In thinking about situations in which

safety reasons are advanced for using

disability-based classifications, the

Department finds it useful to consider

the ‘‘direct threat’’ provisions that exist

in other provisions of the ADA. ‘‘Direct

threat’’ permits exceptions—specific to

an individual—to be made to ADA

nondiscrimination requirements on the

basis of safety. The Department of

Justice (DOJ) rule implementing Title III

of the ADA in the context of public

accommodations defines the concept as

follows:

Direct threat means a significant risk to the

health or safety of others that cannot be

eliminated by a modification of policies,

practices, or procedures, or by the provision

of auxiliary aids or services. In determining

whether an individual poses a direct threat

to the health or safety of others, a public

accommodation must make an

individualized assessment, based on a

reasonable judgment that relies on current

medical knowledge or on the best available

objective evidence, to ascertain: the nature,

duration, and severity of the risk; the

probability that the potential injury will

actually occur; and whether reasonable

modifications of policies, practices, or

procedures will mitigate the risk. (28 CFR

36.208 (b)–(c)).

Very similar regulatory language

appears in the Equal Employment

Opportunity Commission (EEOC) rules

implementing Title I of the ADA in the

context of employment (29 CFR

1630.2(r); see also discussion 56 FR

35745; July 26, 1991). The Department

of Justice regulation implementing Title

II of the ADA in the context of state and

local government programs does not

include ‘‘direct threat’’ language in its

regulatory text, but the preamble applies

the concept to the essential eligibility

requirements for participating in state

and local programs (56 FR 35701; July

26, 1991).

While the DOJ and EEOC language

concerning ‘‘direct threat’’ does not

necessarily apply in its entirety to

transportation issues, the Department

believes that it is appropriate, and in

keeping with the language and intent of

the statute, to determine that disabilitybased classifications in transportation

having a safety rationale are supportable

only on the basis of analysis that

incorporates the essentials of the ‘‘direct

threat’’ concept in a way consistent with

the nature of transportation programs.

The petition at issue in this rulemaking

does not, in the Department’s view,

closely approach what is necessary to be

adopted under such an analysis.

As a general matter, the points raised

by commenters opposed to the proposal,

as described above, have been more

persuasive to the Department than those

points made by its proponents. These

points add to the discussion above as

reasons for the Department’s decision.

The Department believes that transit

providers which, like Seattle, sincerely

desire both to provide

nondiscriminatory service to

individuals with disabilities and to

maximize bus stop safety have some

means available to achieve these

objectives. For example, a transit

provider could provide information to

lift users about potential hazards at

certain stops and offer informational on

alternative stops or routings to such

passengers, where alternatives were

available. The provider could also offer

paratransit to those passengers who

chose to avoid using the stops as a

result.

The transit provider could make

operational modifications to mitigate

potential hazards. For example, if there

is limited space or a potential hazard at

a stop, the bus could let a wheelchair

user board at a nearby area that was

easier to use or stop at a greater distance

from the curb. We are aware that transit

providers are often reluctant to depart

from normal practices in this regard

(although such deviations appear

commonplace during inclement

weather, such as when bottomless

puddles, ‘‘Blizzard of ’96’’-size

snowbanks, or carnivorous potholes

make access to normal stops difficult for

all passengers). Nevertheless, these are

among the kinds of ‘‘reasonable

modifications of policies, practices, or

procedures [to] mitigate the risk’’ that

the ADA calls for.

Transit providers can also urge local

governments to improve accessibility to

bus stops, mitigate hazards at stops, or,

if need be, move stops to better

locations. The Department is aware that

transit providers often do not control

the placement of stops or the land on

which they are located, though we

believe that transit providers should

continue the effort to work with their

local governments on these matters.

For these reasons, the Department is

withdrawing the proposal, based on the

Seattle petition, to permit transit

providers to limit the use of certain bus

stops by lift users. The existing rule’s

language (49 CFR 37.167(g)) will remain

in effect, without change. Any transit

provider that may have instituted limits

on the use of particular stops by lift

users, except as authorized by this

provision, must cease implementing the

limits, as they are explicitly contrary to

the Department’s ADA rule.
25412 Federal Register / Vol. 61, No. 99 / Tuesday, May 21, 1996 / Rules and Regulations

2. Requirements for Private School

Transportation

The Department has decided to grant

the petition of the National Association

of Independent Schools (NAIS) and

adopt the proposed private school

exemption. In doing so, the Department

emphasizes the importance of ensuring

that schools provide disabled students

with equal access to all of the schools’

academic and extracurricular programs.

Private schools will therefore have to

provide equivalent transportation

services to disabled students in order to

be eligible for the exemption. The final

rule will apply the same standard for

equivalent service as is found in

§ 37.105.

This change is being made because

the current requirement that all new

buses purchased be lift equipped does

not apply to most schools. Public

schools are exempt because their

transportation services are excluded

from the ADA’s definition of

‘‘designated public transportation.’’

Schools with a religious affiliation are

exempt based on the ADA’s exemption

for religious organizations. Private

elementary and secondary schools that

receive Federal financial assistance get

the same exemption as public schools if

they provide equivalent transportation

services to students with disabilities

and are covered by section 504 of the

Rehabilitation Act of 1973. By now, the

Department’s regulation exempts all

schools except private, non-religious

schools that receive no Federal financial

assistance.

The NAIS petition pointed out the

anomalous result of the regulation

applying more stringent and costly

standards to schools that receive no

Federal financial assistance than is

applied to schools that do receive

assistance. In response to the NAIS

petition, the NPRM proposed amending

§ 37.27 to apply the same equivalent

services standard to independent

schools as is applied to private schools

that receive Federal assistance. The

majority of the comments received on

this aspect of the proposal supported

extending the private school exemption.

However, many commenters did express

concerns about disabled students’

access to school events. This concern

was shared by the few commenters who

opposed the exemption.

The Department also shares these

concerns. The independent private

schools will be subject to the same

equivalent service standard that other

private schools must meet, namely that

‘‘when viewed in [their] entirety’’

transportation services must be

‘‘provided in the most integrated setting

appropriate to the needs of the

individual and is equivalent to the

service provided other individuals

* * *’’ 49 C.F.R. § 37.105. Any test for

equivalence under § 37.105 would go

beyond providing equal access to

transportation to and from school and

include transportation to and from all of

the school’s extracurricular activities.

This approach is consistent with the

Department of Education’s requirement

that non-academic and extracurricular

activities and services be provided in

such a way as to ensure disabled

students an equal opportunity for

participation. See 34 C.F.R.

§ 104.37(a)(1). In fact, the Department of

Education goes so far as to include

transportation itself as a covered nonacademic service. See id. at

§ 104.37(a)(2).

One commenter raised the possibility

that a school that does not purchase lift

equipped buses because it has no

disabled students might exclude

disabled applicants in the future to

avoid the expense of purchasing lifts.

This concern could be valid. However,

the possibility of the rule change

encouraging future discrimination in the

admissions process is speculative and

the Department has neither the

authority nor the expertise to address

admissions discrimination.

3. People Mover Gap Standards

The Department has decided to adopt

the NPRM’s proposal to allow high

speed AGT systems to comply with the

same train door to platform gap

standard as other high speed rail

systems. The petition was submitted by

the American Society of Civil Engineers

(ASCE). ASCE cited the wide variation

in AGT system speed—5 to 80 miles per

hour—and requested that faster AGT

systems be subjected to the less

stringent requirements applied to rapid

and light rail systems. ASCE had

studied existing AGT systems and

claimed that most do not meet current

AGT standards of one inch horizontal

and half inch vertical gaps between the

train door and the platform edge.

According to ASCE’s analysis, AGT

systems that run at under 20 miles per

hour can reasonably be expected to meet

the current gap standards. Faster AGT

systems, however, require vehicles with

larger, more complicated suspensions

that make it more difficult to meet the

smaller gap standard.

The proposal was not controversial.

Only one of the 17 comments received

objected to the principle of a speed

division and two objected to the

proposed 3-inch gap standard for the

higher speed trains. The proposal would

allow AGT systems that operate at over

20 mph at any point on the system to

comply with the rapid/light rail gap

standards of a 3 inch horizontal gap and

5⁄8 inch vertical gap. One commenter

suggested that the larger gap only be

permitted on sections of the track on

which the AGT system actually ran at

over 20 mph. The suggestion is being

rejected because it ignores the

underlying rationale for the speed

division. If the AGT vehicle is to be

capable of traveling at higher speeds on

other segments of the system, it will

require the more sophisticated

suspension, which will in turn make the

smaller gap standard more difficult to

meet at all stops.

ASCE pointed out that the Access

Board’s preamble discussion refers to

‘‘AGT vehicles that travel at slow

speed,’’ and subsequent Access Board

manuals suggest that the rapid/light rail

gap standard should apply to faster AGT

vehicles. The Access Board has

interpreted its guidelines as permitting

the construction that ASCE urges and

the Department’s action today will

prevent any conflict or confusion

between the guidelines and the rule.

4. 14-Day Advance Reservations

The proposal to remove the 14-day

advance reservation requirement

generated significant interest among

commenters of all types. While

approximately 130 commenters

advocated keeping the reservation

requirement, most expressed

dissatisfaction with current reservation

systems, suggested different reservation

times, capacity allotments for advanced

reservations or demonstration projects

before a change in the requirement is

made. Of the approximately 60

commenters who advocated repealing

the requirement, many made similar

recommendations.

Approximately 45 commenters made

11 different suggestions for changing the

number of days allowed for advance

reservations. Ten of these commenters

believed that the number of days should

be flexible and made no specific

suggestion, five others suggested a range

of 1 to 3 days, one commenter suggested

3 to 7 days and one suggested 7 to 8

days. Among the 27 commenters who

endorsed a specific number of days,

there were seven different

recommendations, ranging from 1 day to

10 days, with 7 days being the most

popular (13 commenters).

Eight commenters suggested limiting

the percentage of paratransit capacity

which could be reserved in advance.

Most of these eight commenters did not

offer a specific percentage limit, those

who did were split between 40 and 50

percent. Three other commenters
Federal Register / Vol. 61, No. 99 / Tuesday, May 21, 1996 / Rules and Regulations 25413

suggested capping the number of trips

an individual rider could reserve in

advance. Similarly, these commenters

did not agree on any one number.

The most common complaint about

advance reservations was that they

caused an unmanageable number of

cancellations and no-shows. Twenty

one commenters suggested penalties for

riders who failed to show up for

scheduled rides. Twelve other

commenters suggested that this problem

could be solved by requiring

confirmation. Among these twelve

comments were three different

suggestions for when the confirmation

should be made; there was also

disagreement over whether the rider or

the transit provider should be

responsible for making the confirmation

call.

Finally, ten commenters complained

that long reservation times created

prioritization, illegally favoring

individuals with certain types of

disabilities or favoring certain types of

trips. Eight commenters pointed out that

advance reservations drain the capacity

of paratransit systems, but seven others

countered that the real problem is

limited capacity, which in turn causes

reservation problems.

In light of the substantial

dissatisfaction with the current 14-day

reservation requirement evident from

the comments and the abundant and

varied suggestions for improving

reservation systems, the Department has

decided to remove the requirement and

allow local transit providers, in

conjunction with the riding public, the

discretion to establish reservation

systems that best meet local needs.

Under the amended rule, transit systems

can establish any reservation system

that meets the other requirements of this

part, with a maximum 14-day advance

reservation period. Paratransit systems

that wish to take advantage of the

flexibility provided by this amendment

by changing their reservation systems

will have to ensure public participation

in the decision to change and local

review of the functioning of the new

system. The public participation

requirements of § 37.137(b) will apply.

One of the points commenters made

in favor of retaining some advance

reservation capacity in paratransit

systems was the added security it

affords concerning occasional,

important, time-sensitive trips. For

example, if someone has airline

reservations, the person needs to be at

the airport at a particular time on a

particular day. The person is likely to be

more comfortable if he or she knows,

prior to the day before travel, that a

paratransit reservation is confirmed.

While we do not believe that this kind

of situation is sufficient, given the

downsides of an advance reservation

requirement, to justify mandating

advance reservations, we suggest that, as

transit providers consult with their

communities about reservation system

changes, that they explore means of

addressing this concern.

It should be emphasized that, in order

to meet Part 37 requirements, all

paratransit systems must provide at

least one-day advance reservations at all

times. One of the apparent reasons that

users take advantage of existing advance

reservation systems in large numbers is

their apprehension that, if they wait

until the day before travel, the capacity

of the system to serve them will have

been exhausted. This can lead, in turn,

to the scheduling, no-show, and

cancellation problems cited in many

comments. To make a short-term

reservation or real-time scheduling

system work properly, transit providers

need to make sure that adequate vehicle

and communications capacity is

available, such that systematic denials

of service do not exist to an extent that

would constitute a capacity constraint

(see § 37.131(f)(3)((i)(B)).

III. DOT-Proposed Adjustments to the

Rule

1. Reduction of Paperwork for

Paratransit Plan Updates

The NPRM proposed that transit

authorities that had fully implemented

the paratransit requirements of the rule

would no longer have to send in annual

updates to FTA. The thinking behind

this proposal was that, once full

compliance had been achieved, annual

updates, and the process required to

generate them, would become an

unnecessary administrative burden.

Instead, there would be a simple

certification of compliance. If, for any

reason, a transit authority slipped out of

full compliance, it would have to inform

FTA and file updates until it was once

again in full compliance.

Transit agencies generally supported

the proposed change, citing the

difficulty that many small providers

have with annual paperwork

submissions. Some of these commenters

said, however, that there should be

other means (e.g., additions to the

National Transportation Database) of

monitoring and reporting data on

paratransit costs and service. Disability

community commenters, on the other

hand, favored retention of the existing

requirement. Some were suspicious of

claims by transit authorities that they

were really in full compliance. A

common theme in these comments was

that the public participation

requirements accompanying the annual

update was a good opportunity for the

disability community to have input

concerning service problems. Indeed,

some commenters said, public

participation provisions should be

strengthened.

Some of the comments also pointed to

a statutory issue. Section 233(c)(7)(B) of

the ADA provides that the Department’s

regulations shall require each public

entity that operates fixed route service

to submit a paratransit plan to the

Secretary within 18 months after the

effective date of the section and ‘‘on an

annual basis thereafter, submit to the

Secretary, and commence

implementation of, a plan for providing

[paratransit] services.’’ In its original

ADA rule, the Department implemented

this requirement by establishing the

annual plan update requirement.

This requirement makes sense during

the phase-in period for paratransit

service. While a transit authority is

gradually building up its paratransit

service to the point where it meets all

service criteria, it is reasonable for the

transit authority to send in annual

progress reports that have been

developed through the public

participation process set forth in the

rule. Once the transit authority has fully

met all the service criteria, however,

there is no new ‘‘progress’’ to report.

There is no implementation to

‘‘commence,’’ since the service required

by the rule is already up and running,

and need only be continued for the

transit authority to meet its ADA

paratransit obligations.

Once the transit authority is fully

meeting all service criteria (including

the criterion concerning capacity

constraints), submitting an annual

certification that it is continuing to meet

all these criteria as provided in its

previously-approved plan meets the

letter and intent of § 223(c)(7)(B). Of

course, should the transit authority fall

below full compliance with all criteria,

it would need to inform FTA and

resume substantive annual updates until

it was once again in full compliance.

In response to comments, the

Department will make two

modifications to the proposed

regulatory language. First, as noted

above, there would need to be a report

to FTA if the transit authority fell out of

compliance. Second, we are adding a

provision authorizing FTA to direct a

transit authority to conduct a public

participation process and submit a plan

update if, in FTA’s judgment (based, for

example, on consumer complaints about

service), there is a reasonable basis for
25414 Federal Register / Vol. 61, No. 99 / Tuesday, May 21, 1996 / Rules and Regulations

concern about continuing full

compliance.

Because the regulation already

requires a mechanism for continuing

public participation (see § 37.137(c)),

the Department is not persuaded that

the public participation process

accompanying plan updates is essential

to provide public input to providers

about paratransit service. While changes

to National Transit Database reporting

concerning paratransit are outside the

scope of this rulemaking, the Federal

Transit Administration will consider

whether some modifications to this

report to provide more data about

paratransit service are desirable.

2. Visitor Eligibility

The NPRM requested comment on its

proposal to clarify the eligibility of

visitors to use paratransit services. The

proposed change would have specified

that the 21 days that transit operators

must provide service to eligible visitors

was 21 days within a year period, as

opposed to 21 continuous days. The

proposed regulatory text would have

read: ‘‘A public entity is not required to

provide service to a visitor for more

than 21 days per year from the date of

the first paratransit trip used by the

visitor.’’ (emphasis added). The

Department has decided to clarify the

provision by specifying that the

maximum amount of service which

transit providers must provide eligible

visitors is 21 days per calendar year.

The Department will further amend the

rule to allow local providers the option

of restricting the 21 days of service use

to 21 continuous service days following

the first trip.

Transit providers were split on

whether visitors should be eligible for

21 continuous days or 21 days per year.

Approximately half of the providers

who commented complained of

administrative difficulties inherent in

keeping track of 21 days of service

spread out over an entire year. It was

also pointed out that with 21 days per

year, paratransit operators have more

difficulty managing capacity because

they cannot predict demand. Other

providers disagreed, reporting no

administrative burden or capacity drain

from allowing visitors 21 days per year.

Capital Metro of Austin, Texas believes

that 21 continuous days of eligibility is

insufficient to meet the needs of

frequent visitors, such as college

students returning home on breaks, and

instead allows visitors six months of

service before requiring them to apply

for local eligibility. Individuals with

disabilities and advocacy groups almost

all favored 21 days per year.

When an individual with a disability

travels to another city, it remains the

Department’s policy that he or she have

open and ready access to local mass

transit without any need to have

planned the trip in advance. Indeed,

often the traveler will be unfamiliar

with the new city and have no way to

know in advance what his or her travel

needs will be. For this reason, the

Department’s amendment to this

provision emphasizes that in no case

may a transit provider require a visitor

to apply for or be granted eligibility

certification before being able to use the

provider’s paratransit service as

provided in § 37.127.

Given the desire commenters

expressed for clarification of how the

visitor eligibility provision is intended

to work, and the likelihood that there

may be many situations in which

individuals (e.g., business travelers,

weekend trip visitors) will make repeat

trips to a given city during a year, the

Department has decided to require that

transit authorities permit a visitor to use

the service on any combination of 21

days throughout a 365-day period. For

example, if Ms. Smith first uses the

service on April 1, she could use the

service on April 2–6, May 17, July 10–

15, October 7, etc. until she had used

the service on 21 days in the period

extending through March 31 of the next

calendar year. The way that XYZ

chooses to implement visitor eligibility

should be made part of its paratransit

program and visitors should be

provided materials clearly explaining

how XYZ’s visitor policy works.

3. Vehicle Acquisition for ‘‘Private Not

Primarily Engaged’’ Providers

Section 37.101 contains the vehicle

acquisition requirements for private

entities not primarily engaged in the

business of transporting people.

Paragraph (d) of the section applies to

private entities which operate demand

responsive systems which purchase

vehicles with seating capacity over 16.

When these entities purchase such a

vehicle, it must be accessible to

individuals who use wheelchairs,

unless the entity can show that when

viewed in its entirety, its system

provides equivalent service to

individuals with disabilities. The

standard for equivalent service is found

in § 37.105, to which paragraph (d)

refers the reader.

Neither § 37.101 nor the ADA has any

vehicle acquisition requirement for

private entities not primarily engaged in

transporting people which operate

demand responsive systems which

purchase vehicles with seating capacity

of 16 or less. This has created the

mistaken impression that there are no

service standards which apply to these

systems. The ADA does require private

operators of demand responsive systems

to provide equivalent service to

individuals with disabilities regardless

of whether or not they purchase any

new vehicles. This requirement is

contained in Section 302(b)(2)(C) of the

ADA and is reflected in the

Department’s regulations in § 37.171.

Section 37.171 applies the same

standard for overall equivalent service

as is found in § 37.105.

To eliminate the confusion which has

resulted from these requirements, this

final rule adds a new paragraph to

§ 37.101 which explicitly states that

private entities operating demand

responsive systems that purchase

vehicles with capacity of 16 or fewer

must provide equivalent service to

individuals with disabilities. The new

paragraph refers the reader to both the

requirement stated in § 37.171 and the

standard articulated in § 37.105.

4. Personal Care Attendants

The NPRM requested comments on

the question of how to define a personal

care attendant (PCA), and whether

further definition was necessary, for the

purposes of determining eligibility to

ride paratransit free while

accompanying a paratransit eligible

individual. Half of all comments

received on the NPRM addressed this

issue. Individuals with disabilities and

advocacy groups were overwhelmingly

opposed to any attempt to further define

a PCA, often expressing the opinion that

further definition would constitute an

invasion of privacy.

Transit authorities were divided on

the question, with eight believing that

there was no problem and no further

action warranted, and more than a

dozen believing that something should

be done. Three transit authorities

suggested registering the PCAs

themselves, and three more believed

that only PCAs needed for the trip

should qualify, not those whose services

were required at the destination. Several

commenters suggested that individuals

who needed PCAs should register that

need as part of the application process—

something that the Appendix already

allows paratransit providers to require.

Three of the transit authorities that

supported requiring riders to register the

need for a PCA went further to suggest

that individuals who have registered a

need for a PCA be denied service when

riding alone.

The Department has decided not to

amend the regulatory text regarding

PCAs. We wish to reemphasize,

however, that the existing definition of
Federal Register / Vol. 61, No. 99 / Tuesday, May 21, 1996 / Rules and Regulations 25415

a PCA does not distinguish between

PCAs whose services are required

during the paratransit ride and those

required at the destination. Limiting

riders to PCAs who were required on

the paratransit trip could leave a rider

unable to function at his or her

destination, thereby making the trip

meaningless.

Finally, several commenters suggested

requiring those who register as using a

PCA be denied service when riding

alone. The Department did not adopt

this suggestion. Riders who use a PCA

for destination needs may well have

varying needs depending on the trip

purposes. Requiring these riders to be

accompanied by a PCA even when they

do not expect to require assistance will

create unnecessary expenses for the

rider and further burden the seating

capacity of the transit provider. Other

riders may have varying levels of

assistance needs over time, and

requiring these riders to either further

define their needs in advance or always

travel with a PCA is unjustifiably

intrusive.

5. Equivalent Facilitation

The final substantive change

proposed in the NPRM was to delete the

requirement that an entity demonstrate

an inability to comply with existing

requirements as a condition of obtaining

a determination of equivalent

facilitation. As explained in the NPRM,

the original purpose of the provision

was to limit departures from established

regulatory standards and promote

uniformity and predictability. The

Department was concerned, however,

that requiring a showing of inability to

comply was having the effect of stifling

innovation and discouraging the

development of new technologies that

might provide equal or even greater

accessibility at a lower cost.

The discussion of this change that

appeared in the preamble of the NPRM

addressed only whether a petitioning

entity should have to demonstrate its

inability to comply. A drafting error in

the proposed regulatory text created the

impression that the amendment would

have gone further, eliminating other

reporting requirements associated with

the petition for equivalent facilitation.

The Department apologizes for the error

and wishes to note that at no time were

the other requirements considered for

removal.

Commenters were split on this

proposal. All commenting transit

authorities and providers agreed with

the proposal, as did a few other

commenters. Many of these commenters

clearly conditioned their support on the

Department ensuring that the change

did not allow any decrease in

accessibility. Members of the disability

community voiced strong dissent to the

proposal. Almost all of the comments

filed by individuals with disabilities

and their advocacy groups viewed the

change as a weakening of the ADA’s

accessibility standards and many

expressed distrust of the Department’s

ability to ensure legitimate equivalence.

Recognizing that significant costs can

be associated with ADA compliance, the

Department feels that to ensure the most

widespread long-term compliance, it

must allow as much flexibility as

possible and encourage the

development of new, more cost effective

technologies. Accordingly, the

requirement that an entity show that it

is unable to comply with current

standards is being eliminated from the

petition for equivalent facilitation.

Petitioning entities must continue to

show that their alternative method

actually provides equal or greater

accessibility. This point protects the

interests of the disability community

concerning maintaining the strength of

accessibility requirements. The other

reporting requirements of the petition

found in § 37.7 and § 37.9 will also

remain, such as demonstrating the

effectiveness of the alternative measures

for compliance and documenting the

public participation used in developing

the alternative method. The Department

notes that the original purpose of the

requirement, encouraging uniformity

and predictability, remains an important

goal.

6. Clarification of Appendix Statement

on Vehicle Lift Dimensions

The NPRM proposed to clarify a

reference to the Part 38 standards for

accessible vehicles. Appendix D to Part

37 contains explanatory statements and

guidelines for Part 37. In Appendix D,

section 37.13, the discussion of section

37.13 of the rule refers to the ‘‘new 30′′

by 48′′ lift platform specifications.’’ This

statement was intended to refer to the

Part 38 standards for lift platforms. The

reference oversimplifies the Part 38

standard, which requires 30 × 48 inch

dimensions at a height of 2 inches above

the platform base, but only requires a

width of 28.5 inches at the base itself.

To eliminate the confusion created by

the reference, section 37.13 of Part 37,

Appendix D will be amended to replace

the words ‘‘new 30′′ by 48′′ ’’ with the

words ‘‘Part 38’’.

7. Typographical Errors

The typographical errors in §§ 37.3

and 37.11(a) will be corrected as

described in the NPRM.

Regulatory Analyses and Notices

This final rule is not significant under

Executive Order 12866. It is significant

under the Department’s Regulatory

Policies and procedures, because it

amends a significant rule having

substantial public interest. We expect

economic impacts to be minimal, so we

have not prepared a regulatory

evaluation. There are no Federalism

impacts sufficient to warrant the

preparation of a Federalism assessment.

The Department certifies that the rule

will not have a significant economic

impact on a substantial number of small

entities.

Issued this 7th day of March, 1996, at

Washington, DC.

Federico Pen ̃ a,

Secretary of Transportation.

For the reasons set forth in the

preamble, the Department proposes to

amend 49 CFR Part 37 and 49 CFR Part

38 as follows:

PART 37—[AMENDED]

1. The authority citation for 49 CFR

Part 37 is proposed to continue to read

as follows:

Authority: Americans with Disabilities Act

of 1990 (42 U.S.C. 12101–12213); 49 U.S.C.

322.

2. The authority citation for 49 CFR

Part 38 is proposed to be revised to read

as follows:

Authority: Americans with Disabilities Act

of 1990 (42 U.S.C. 12101–12213); 49 U.S.C.

322.

3. In part 37, § 37.27(b) is proposed to

be revised to read as follows:

§ 37. 27 Transportation for elementary and

secondary education systems.

* * * * *

(b) The requirements of this part do

not apply to the transportation of school

children to and from a private

elementary or secondary school, and its

school-related activities, if the school is

providing transportation service to

students with disabilities equivalent to

that provided to students without

disabilities. The test of equivalence is

the same as that provided in § 37.105. If

the school does not meet the

requirement of this paragraph for

exemption from the requirements of this

part, it is subject to the requirements of

this part for private entities not

primarily engaged in transporting

people.

§ 37.3 [Amended]

4. In part 37, § 37.3 the definition of

the term ‘‘Designated public

transportation’’ is amended by replacing
25416 Federal Register / Vol. 61, No. 99 / Tuesday, May 21, 1996 / Rules and Regulations

the word ‘‘containing’’ with the word

‘‘continuing.’’

5. In Part 37, § 37.7 is amended by

revising paragraph (b)(2)(ii) and

removing and reserving (b)(2)(iii) to read

as follows:

§ 37.7 Standards for accessible vehicles.

* * * * *

(b) * * *

(2) * * *

(ii) Specific provision of part 38 of

this title concerning which the entity is

seeking a determination of equivalent

facilitation.

* * * * *

6. In Part 37, § 37.9 is amended by

revising paragraph (d)(2)(ii) to read as

follows and removing and reserving

(d)(2)(iii):

§ 37.9 Standards for accessible facilities.

* * * * *

(d) * * *

(2) * * *

(ii) Specific provision of Appendix A

to Part 37 concerning which the entity

is seeking a determination of equivalent

facilitation.

* * * * *

§ 37.11 [Amended]

7. In part 37, § 37.11(a) is amended by

replacing the words ‘‘subpart F’’ with

the words ‘‘subpart C.’’

8. In Part 37, § 37.101 is amended by

adding a new paragraph (e), to read as

follows:

§ 37.101 Purchase or lease of vehicles by

private entities not primarily engaged in the

business of transporting people.

* * * * *

(e) Demand Responsive System,

Vehicle Capacity of 16 or Fewer.

Entities providing demand responsive

transportation covered under this

section are not specifically required to

ensure that new vehicles with seating

capacity of 16 or fewer are accessible to

individuals with wheelchairs. These

entities are required to ensure that their

systems, when viewed in their entirety,

meet the equivalent service

requirements of §§ 37.171 and 37.105,

regardless of whether or not the entities

purchase a new vehicle.

9. In Part 37, § 37.127(e) is revised to

read as follows:

§ 37.127 Complementary paratransit

service for visitors.

* * * * *

(e) A public entity shall make the

service to a visitor required by this

section available for any combination of

21 days during any 365-day period

beginning with the visitor’s first use of

the service during such 365-day period.

In no case shall the public entity require

a visitor to apply for or receive

eligibility certification from the public

entity before receiving the service

required by this section.

10. In part 37, § 37.131(b)(4) is revised

to read as follows:

§ 37.131 Service criteria for

complementary paratransit.

* * * * *

(b)* * *

* * * * *

(4) The entity may permit advance

reservations to be made up to 14 days

in advance of an ADA paratransit

eligible individual’s desired trips. When

an entity proposes to change its

reservations system, it shall comply

with the public participation

requirements equivalent to those of

§ 37.131(b) and (c).

* * * * *

11. In Part 37, § 37.135 is amended by

revising paragraph (c) to read as follows:

§ 37.135 Submission of paratransit plan.

* * * * *

(c) Annual Updates. Except as

provided in this paragraph, each entity

shall submit an annual update to its

plan on January 26 of each succeeding

year.

(1) If an entity has met and is

continuing to meet all requirements for

complementary paratransit in

§§ 37.121–37.133 of this part, the entity

may submit to FTA an annual

certification of continued compliance in

lieu of a plan update. Entities that have

submitted a joint plan under § 37.141

may submit a joint certification under

this paragraph. The requirements of

§§ 37.137–37.139 do not apply when a

certification is submitted under this

paragraph.

(2) In the event of any change in

circumstances that results in an entity

which has submitted a certification of

continued compliance falling short of

compliance with §§ 37.121–37.133, the

entity shall immediately notify FTA in

writing of the problem. In this case, the

entity shall also file a plan update

meeting the requirements of §§ 37.137–

37.139 of this part on the next following

January 26 and in each succeeding year

until the entity returns to full

compliance.

(3) An entity that has demonstrated

undue financial burden to the FTA shall

file a plan update meeting the

requirements of §§ 37.137–37.139 of this

part on each January 26 until full

compliance with §§ 37.121–37.133 is

attained.

(4) If FTA reasonably believes that an

entity may not be fully complying with

all service criteria, FTA may require the

entity to provide an annual update to its

plan.

Appendix D [Amended]

12. In Part 37, Appendix D, the

paragraph entitled ‘‘Section 37.13

Effective Date for Certain Vehicle Lift

Specifications’’ is proposed to be

amended by replacing the words ‘‘new

30′′ by 48′′’’ with the words ‘‘Part 38.’’

§ 38.173 [Amended]

13. In part 38, § 38.173(a) is amended

by adding the words ‘‘(i.e., at a speed of

no more than 20 miles per hour at any

location on their route during normal

operation)’’ after the words ‘‘slow

speed.’’

14. In part 38, § 38.173(d) is amended

by adding the following sentence at the

end thereof, to read as follows:

§ 38.173 Automated guideway transit

vehicles and systems.

* * * * *

(d) * * * AGT systems whose

vehicles travel at a speed of more than

20 miles per hour at any location on

their route during normal operation are

covered under this paragraph rather

than under paragraph (a) of this section.

[FR Doc. 96–11935 Filed 5–20–96; 8:45 am]

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