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.