37.37 Other applications.
(a) A private entity does not become subject to the requirements of this
Part for public entities, because it receives an operating subsidy from,
is regulated by, or is granted a franchise or permit to operate by a public
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
(b) Shuttle systems and other transportation services operated by privately-owned
hotels, car rental agencies, historical or theme parks, and other public
accommodations are subject to the requirements of this Part for private entities
not primarily engaged in the business of transporting people. Either
the requirements for demand responsive or fixed route service may apply,
depending upon the characteristics of each individual system of transportation.
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.
(c) Conveyances used by members of the public primarily for recreational
purposes rather than for transportation (e.g., amusement park rides,
ski lifts, or historic rail cars or trolleys operated in museum settings)
are not subject to the requirements of this Part. Such conveyances
are subject to Department of Justice regulations implementing Title II or
Title III of the ADA, as applicable.
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.
(d) Transportation services provided by an employer solely for its own employees
are not subject to the requirements of this Part. Such services are
subject to the regulations of the Equal Employment Opportunity Commission
under Title I of the ADA and, with respect to public entities, the regulations
of the Department of Justice under Title II of the ADA.
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.
(e) Transportation systems operated by private clubs or establishments exempted
from coverage under Title II of the Civil Rights Act of 1964 (42 U.S.C. 2000-a(e))
or religious organizations or entities controlled by religious organizations
are not subject to the requirements of this Part.
(f) If a parent private company is not primarily engaged in the business
of transporting people, or is not a place of public accommodation, but a
subsidiary company or an operationally distinct segment of the company is
primarily engaged in the business of transporting people, the transportation
service provided by the subsidiary or segment is subject to the requirements
of this Part for private entities primarily engaged in the business of transporting
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.
(g) High-speed rail systems operated by public entities are subject to the
requirements of this Part governing intercity rail systems.
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.
(h) Private rail systems providing fixed route or specified public transportation
service are subject to the requirements of 37.107 with respect to the acquisition
of rail passenger cars. Such systems are subject to the requirements
of the regulations of the Department of Justice implementing Title III of
the ADA (28 CFR Part 36) with respect to stations and other facilities.