UNITED STATES DEPARTMENT OF TRANSPORTATION OFFICE OF THE SECRETARY DOCKET NO. DOT-OST Comments of the American Bus Association

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1 UNITED STATES DEPARTMENT OF TRANSPORTATION OFFICE OF THE SECRETARY DOCKET NO. DOT-OST Comments of the American Bus Association On the Notice of Retrospective Review of the Americans with Disabilities Act Regulations for Over-the- Road Bus Operators; Request for Comments. April 29, 2013 The American Bus Association (ABA) appreciates this opportunity to respond to the United States Department of Transportation s (hereinafter USDOT ) request for comments to help review some of the requirements of the Americans with Disabilities Act of 1990 (Pub. L , 104 Stat. 327, 42 U.S.C. 225 and 611), ( ADA ) for over-the-road bus ( OTRB ) operators. USDOT s notice was reported at 78 Federal Register (February 27, 2013). USDOT s notice also seeks information to determine whether to initiate a rulemaking to propose revisions to any of the regulations involving OTRBs. See 78 Fed. Reg INTRODUCTION USDOT s review stems from the agency s ADA motorcoach implementation schedule which required the accessibility of new over-the-road buses and accessible OTRB service. This implementation schedule was issued as a final regulation on September 28, 1998 (See 78 Fed. Reg ). An OTBR is defined as a bus characterized by an elevated passenger deck located over a baggage compartment. 49 CFR In announcing the implementation schedule USDOT was also required by 49 CFR to review various requirements within the ADA regulations for OTRB operators by October 29, While USDOT missed the deadline it imposed on itself to review these ADA requirements, the ABA and its member bus operators appreciate this chance to apprise the agency of bus operators thoughts for maintaining and improving bus and motorcoach service to passengers with disabilities. 111 K Street NE 9th Floor Washington, DC (202) (800) Fax: (202) abainfo@buses.org

2 The American Bus Association (ABA) is the premier private bus and motorcoach industry trade association. The ABA is home to some 3800 member companies and organizations and approximately 850 bus operator companies. The bus operator members provide all manner of transportation services to the public including, fixed route scheduled service, charter and tour, airport shuttle and commuter services. In total, the private OTRB industry provides some 700 million passenger trips annually. In some years the number of passengers we carry exceeds that of the domestic airline industry. In addition the private bus industry carries more passengers in two weeks than Amtrak carries in a year. Added to this is the fact that the private bus industry is growing. For example the intercity service of private motorcoaches has grown 7% in each of the last two years. New routes, particularly so called point to point routes, have increased in the East, South, and Midwest areas of the country. The private OTRB industry is largely a small business industry. The average ABA bus operator member has eight coaches, and is engaged in largely charter and tour services. Each motorcoach can cost $500,000 or more (extensive renovation and additions can push the cost of some motorcoaches to two million dollars). Even the largest ABA members engaged in intercity bus service do not approach the size of or command the financial resources of the largest domestic corporations. ABA is certain that many of its bus operator members, both fixed route and charter and tour, will submit comments based on their individual experiences over the last fifteen years. For its part ABA will summarize the experiences of private bus operators with the ADA, our industry s efforts at compliance with the law and our suggestions for maintaining and improving service. The motorcoach industry s usage of wheelchair-lift-equipped buses is far below the number of wheelchair lifts predicted by USDOT. As individual bus operators will detail in their submissions no bus operator has had more than a relative handful of requests for wheelchair-lift-equipped motorcoaches at any time during the life of the ADA. Further, the handful of such requests is fully met by the fixed route scheduled operators and the charter and tour requirement that a wheelchair-lift-equipped motorcoach be available on 48 hours notice. ABA s member operators experience is not atypical. ABA respectfully requests that one, USDOT rescind its opinion that extra sections on fixed route service particularly at peak period times requires wheelchair-lift-equipped motorcoaches even if there is no passenger with disabilities awaiting transportation; and two, that the 48 hours advance notice requirement for wheelchair availability for fixed route service be reinstated. BACKGROUND One purpose of the Americans with Disabilities Act of 1990, (Pub. L , 42 U.S.C [ADA]) is to provide access to transportation for persons with disabilities. One goal of the private motorcoach industry is to transport all persons with disabilities when these customers require transportation on a fixed route system or as a part of the charter and tour motorcoach industry. The definition of a fixed route system means a system of transporting individuals including the provision of transportation services by private entities, including, but not limited to, specified public transportation service, on which a vehicle is operated along a prescribed route according to a fixed schedule (49 C.F.R. 37.3). 2

3 The ADA requires accessibility based on vehicle type and operations. The ADA implementation schedule required that a fixed route operator must provide that 100% of the buses in its fleet with which it provides fixed-route service are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs by October 29, See 49 C.F.R (b). Charter and tour bus operators must provide lift-equipped service on 48 hours notice with no requirement for fleet accessibility. Prior to October 29, 2012 the intercity fixed route carriers had to provide wheelchair-liftequipped service on 48 hours advance notice the same notice period required by charter and tour operators. After October 29 th, all intercity fixed route carriers were required to provide wheelchair-liftequipped motorcoaches on all scheduled service runs without any advance notice. Indeed, USDOT allowed the notice requirement to expire as an interim standard and not replaced by any other requirement or standard. The effect of the expiration therefore required that all buses on scheduled service operations be wheelchair-lift-equipped. However, the new requirement for wheelchair-liftequipped buses does not contain any permanent service or notice standards to test compliance with the non-notice requirement. The prior advance notice requirement had interim standards that by definition expired when the bus fleets became 100% accessible. The private bus industry has been unanimous and consistent on the point that the 48 hours advance notice requirement has worked extremely well for the industry and for passengers with and without disabilities. This notice requirement is fully in line with the need of persons with disabilities to plan their travel in order to ensure a seamless and worry-free transportation experience. The advanced notice requirement provided time for coordination between carriers and passengers and between carriers and carriers. For example, the notice requirement gave time for one carrier (a class 1 carrier) to notify another carrier (a class 2 carrier) that a passenger needed a wheelchair-lift-equipped bus and for the time for that second carrier to procure one. Without the notice requirement it is possible that a passenger with disabilities will not have a lift equipped bus available at the point the passenger moves from carrier 1 with a notice requirement to carrier 2 which does not have a notice requirement. Furthermore, the 48 hours advance notice requirement provided time for a carrier to ensure, through maintenance and testing, that a wheelchair-lift-equipped motorcoach was available and operational for a passenger with disabilities. Another question that bears on the correctness of a notice requirement for intercity service is whether the demand for wheelchair lift service requires a non-notice system as USDOT appears to believe. ABA has not been made aware of any USDOT data bearing on the usage of wheelchair-liftequipped buses among motorcoach operators. That said, in the view of ABA and its member companies, any non-notice system of access to wheelchair-lift-equipped buses is antithetical to providing transportation for all passengers with or without disabilities and is not supported by the industry s experience in providing wheelchair-lift-equipped coaches to the public as attested to by motorcoach operators and their annual filings of wheelchair lift usage data. Moreover, while USDOT seems to infer that demand for wheelchair lift service requires a non-notice system, there is no specific standard in USDOT regulations that requires a non-notice system. 3

4 Section 305 of the ADA instructed the U.S. Government s Office of Technology Assessment (OTA), then an independent agency with the mission of reviewing the use of technology and determining technology s effect on regulatory issues, to undertake a study to determine the access needs of individuals with disabilities to OTRB service and the most cost effective methods for providing access to OTRB service to individuals with disabilities. U.S. Congress, Office of Technology Assessment, Access to Over-the-Road Buses for Persons with Disabilities, OTA-SET-547 (Washington, D.C. GPO, May, 1993) p. 8 (hereinafter OTA Report ). In attempting to estimate the potential OTRB ridership for persons with disabilities, OTA estimated that the total number of trips made annually on fixed route services might include the following: 180,000 trips by persons using wheelchairs, 210,000 trips by persons using walkers and 380,000 trips by persons using any mobility aid OTA Report, pg. 19. For charter and tour services, OTA estimated the following: 1.7 million trips by persons using wheelchairs, 2 million trips by persons using walkers and 3.6 million trips by persons using any mobility devices OTA Report, pg. 19. OTA acknowledged that its projections were highly uncertain. OTA Report, pg. 19. However, the agency then proceeded to cast more doubt on its own uncertain estimates by noting that few individuals had actually taken advantage of the lifts as of mid-1992 OTA Report, pg. 86. For example, the OTA Report stated that Peter Pan Bus Lines, (a fixed route carrier still operating today) reported 361 reservations for accessible service since 1985 and that Plymouth and Brockton Street Railway Company (another fixed route carrier still in operation) had approximately 50 lift use reservations in 1991, out of a total ridership of approximately 1.25 million for that year OTA Report, ibid. Today the number of passengers with disabilities requesting wheelchair-lift-equipped coaches is far fewer than the 1993 OTA estimated 180,000 passengers. As one example, Plymouth and Brockton s Annual Report on Accessible Transportation Request Summary for 2012 (49 CFR Part 37 section ), reveals that the carrier had 46 requests for accessible transportation. During the same year Plymouth and Brockton transported approximately three-quarters of a million passengers. Put simply, and starkly, passengers with disabilities made up a little more than one one thousandth of one percent of Plymouth and Brockton s passenger load in Finally, Peter Pan Bus Lines total passenger count for 2012 was two million, four hundred thousand and it had 359 requests for reservations for accessible service for that year. Thus, Peter Pan s passengers with disabilities were also little more than one one thousandth of one percent of its passenger base. Like Plymouth and Brockton, Peter Pan, carries only a fraction of the estimate for passengers with disabilities that USDOT apparently relies on in establishing the present non-notice requirement for accessible motorcoaches. As we will demonstrate shortly the numbers from these two carriers about wheelchair lift usage is in line with the overwhelming majority of the industry. The 48 hours advance notice system worked and ensured service to all passengers. Of course, there are motorcoach operators who deliberately avoid carrying passengers with disabilities and who, when called on to provide such service frankly, and illegally, tell the passengers to call Greyhound or Megabus or any other legitimate, ADA compliant carrier. But the critical point is that every fixed route service operator has been able to meet demand for wheelchair-lift-equipped buses with the advanced notice requirement. 4

5 The same result is true for charter and tour operators. The number of requests for wheelchairlift-equipped coaches is far fewer than even the number requested of fixed route service providers. Indeed, many charter and tour bus operators report requests in the single digit range annually. Again, the 48 hours notice requirement works exceedingly well based on the lack of complaints by passengers with disabilities and the small number of requests for wheelchair-lift-equipped buses and motorcoaches received by the industry. There is a critical point about the effect of this new non-notice requirement on charter and tour operators that USDOT appears to have overlooked. The fixed route and charter and tour sides of the motorcoach industry work together so that when, during peak periods, fixed route carriers need additional equipment those carriers lease equipment from charter operators. Charter operators, overwhelmingly small businesses, use the income from these so-called trip leases to supplement their income, in fact trip leases provide vital income to the charter operators. Many charter operators can attest to the need for the trip lease income to continue in business. But charter and tour carriers are not required to have all motorcoaches wheelchair-lift-equipped. Under the new non-notice requirement fixed route carriers will only be able to use charter operators that can supply them with wheelchair-lift-equipped buses. The result is fewer charter operators available for trip leases, fewer fixed route transportation services available at peak periods and fewer seats for any passengers. The need for an advance notice requirement rests upon the basic notion that, as stated above, the motorcoach reservation system works when motorcoach operators have the time to obtain, if necessary, a wheelchair-lift-equipped bus; coordinate the movement of wheelchair-lift-equipped buses between the carriers; and ensure that the equipment will perform as required. As our operators have heard from passengers needing this equipment, scheduling travel needs is essential for persons with disabilities. The same necessity for scheduling may be said for the operators that are charged with providing this equipment. Many motorcoach operators and ABA believed that only the first section on each schedule is the fixed route bus since the first bus is the only one scheduled to operate and any additional buses are operated only if demand warrants and equipment is available. Thus, these additional buses would be demand responsive. This interpretation would have enabled operators to meet the excess demand with inaccessible buses, except when there were mobility impaired passengers seeking to ride the extra sections. In a letter addressed to ABA President and Chief Executive Officer Peter J. Pantuso dated August 8, 2012 and signed by Robert S. Rivkin, the agency s General Counsel, USDOT rejected this determination. The letter stated that (t)he DOT interprets Section as requiring 100% accessibility for fixed route OTBRs, including any extra sections of service at heavy traffic times. As described below, this interpretation is having serious negative consequences for travelers at peak periods, whether or not they use wheelchairs. 5

6 ABA COMMENTS USDOT s decision to allow the 48 hours advance notice rule for Class 1 fixed route service to expire does not contribute to any increase in service to passengers with disabilities. As indicated above the 48 hours advance notice system was performing well with few complaints about lack of service by passengers with disabilities. In fact, a search of the United States Department of Justice s records (the lead agency in ADA enforcement) reveals that there have been just 14 complaints against OTRB buses for the denial of transportation service to persons with disabilities in the past fourteen years. However, and more importantly, USDOT s decision to deny ABA s proposal that extra sections can be considered demand responsive for which, if there are no passengers with disabilities, no wheelchair-lift-equipped bus is required, has only increased the likelihood that there will be less intercity fixed route service available for all passengers. This is so because the pool of wheelchair-lift-equipped motorcoaches is finite and will, at times of heavy traffic, such as the day before Thanksgiving holiday and the last day of a college term, always be fewer in number than the number of motorcoaches generally. As an example ABA offers the following scenario: a fixed route motorcoach operator has fifty motorcoaches and provides service between a University and a major hub city. Each bus in the operator s fleet is wheelchair-lift-equipped and each bus is in service the day before the Thanksgiving holiday. However, on that day the need for ten additional motorcoaches is evident. The operator will of course attempt to supplement his buses with buses from other carriers, and normally available charter and tour carriers will be the source of these ten additional buses. However, the fixed route operator finds only eight additional wheelchair-lift-equipped buses. If the operator uses only those eight buses the operator potentially leaves behind one hundred passengers who want service but who cannot be accommodated. If the operator uses those eight buses and two non-wheelchair-lift-equipped buses the operator violates USDOT s determination that all fixed route schedules must be wheelchair-liftequipped, even if there is no passenger who requires a wheelchair-lift-equipped bus waiting for service. In sum, the carrier is forced to leave behind non-disabled passengers because he or she does not have a wheelchair-lift-equipped bus at hand. The above scenario is not theoretical. ABA members are in just such a quandary today due to USDOT s determination that all fixed route buses be wheelchair-lift-equipped regardless of the presence of a passenger with disabilities who requires such a bus. Literally, ABA members are faced with a no win choice of either abiding by the ADA and leave passengers behind or failure to abide by the ADA and face censure and worse from the USDOT and the United States Department of Justice. Some carriers, as ABA has learned, were forced to leave customers without service between November 2012 and the end of the year because there were no wheelchair-lift-equipped coaches available to the carrier even though there were no passengers with disabilities who were not accommodated by the carrier. 6

7 ABA conducted an informal review of the passenger loads of 15 large and midsized fixed route carriers and looked at their activities in 2012 and also during the peak holiday travel period which included the week prior to Thanksgiving through the week after Christmas. During that peak period, the surveyed carriers transported approximately 5,000,000 passengers. Of that number, approximately 825 passengers needed wheelchair lift accommodations (about 0.065% of the total passenger count). For the twelve month period of 2012, this same surveyed group of scheduled service carriers transported almost 35 million passengers and had approximately 16,000 wheelchair lift requests (a usage rate of 0.045%). The figures are striking and eloquent testimony that ADA compliance does not require elimination of the 48 hours notice requirement. Indeed, the elimination of the notice has done nothing but impede the use of bus and motorcoach transportation for all of the nation s travelers. There is another important reason why, in ABA s view, the 48 hours notice requirement should remain for fixed route service. The fact that technology has been developed to help people to notify bus companies in advance of their desire to travel. The 1993 OTA Report noted this fact. The report, under the heading of Reservation Systems, stated that one approach to ensuring accessible service is to have persons with special needs notify bus companies in advance of their desire to travel OTA Report pg The report listed as one possible helpful technology the use of a 24 hour telephone or modem lines for reservations and information OTA Report, id. As OTA also noted, in 1993 few intercity bus companies had reservation systems. That is no longer the case. Many, if not all, intercity bus services use some form of on-line reservation system to coordinate passenger services, access and requests. The use of reservation systems to make, change or cancel reservations or alert the bus company to passengers needs is no longer the exception, it is the rule. The use of a reservation system is today seen as a normal step in providing notice to the bus company of a passenger s needs. There is no reason for this reservation system not to be used to aid passengers with disabilities in planning and coordinating their travel plans. Many carriers providing connecting interline services are already using the transmission of the passenger s ticketing purchase to initiate the electronic notification of other carriers involved in the various legs of the transportation move. In fact, ABA is certain that the majority of passengers with disabilities avail themselves of reservation systems when planning any form of travel. The costs to a passenger with disabilities who fails to do so are just too great. Using a reservation system allows a passenger to expect a seamless transportation experience, particularly when transferring from a scheduled service carrier with a notice requirement to a carrier with no notice requirement. Failure to plan can lead to disrupted plans, missed connections and frustration. The use of a reservation system is a defense against those negative effects. 7

8 CONCLUSION For all of the above reasons the ABA respectfully requests that USDOT rescind its determination that all extra sections on every fixed route service must be wheelchair-lift-equipped when there are no passengers with disabilities who require wheelchair-lift-equipped motorcoaches for transportation. In addition, ABA also requests that the 48 hours advance notice requirement be reinstated for fixed route service particularly at peak transportation periods. Respectfully submitted, Peter J. Pantuso President and CEO American Bus Association 111 K Street, NE, 9 th Floor Washington, D.C (202) ppantuso@buses.org 8