37.169 Interim requirements for over-the-road bus service operated
by private entities.
(a) Private entities operating over-the-road buses, in addition to compliance
with other applicable provisions of this Part, shall provide accessible service
as provided in this section.
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.
(b) The private entity shall provide assistance, as needed, to individuals
with disabilities in boarding and disembarking, including moving to and from
the bus seat for the purpose of boarding and disembarking. The private
entity shall ensure that personnel are trained to provide this assistance
safely and appropriately.
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.
(c) To the extent that they can be accommodated in the areas of the passenger
compartment provided for passengers' personal effects, wheelchairs or other
mobility aids and assistive devices used by individuals with disabilities,
or components of such devices, shall be permitted in the passenger compartment.
When the bus is at rest at a stop, the driver or other personnel shall assist
individuals with disabilities with the stowage and retrieval of mobility
aids, assistive devices, or other items that can be accommodated in the passenger
compartment of the bus.
(d) Wheelchairs and other mobility aids or assistive devices that cannot
be accommodated in the passenger compartment (including electric wheelchairs
) shall be accommodated in the baggage compartment of the bus, unless the
size of the baggage compartment prevents such accommodation.
(e) At any given stop, individuals with disabilities shall have the
opportunity to have their wheelchairs or other mobility aids or assistive
devices stowed in the baggage compartment before other baggage or cargo is
loaded, but baggage or cargo already on the bus does not have to be off-loaded
in order to make room for such devices.
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.
(f) The entity may require up to 48 hours' advance notice only for providing
boarding assistance. If the individual does not provide such notice,
the entity shall nonetheless provide the service if it can do so by making
a reasonable effort, without delaying the bus service.
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.