tured vehicles when the remanufacturing effort involves stripping the vehicle to frame prior to rebuilding.

An additional concern relating to rail accessibility relates to streetcar operations in mixed traffic. Philadelphia has an extensive surface streetcar network, which features trolley operations in the middle of several major city streets. Lift deployment and wheelchair boarding in the middle of a busy street present a serious safety hazard, therefore, streetcar operations in mixed traffic should be specifically exempted from accessibility requirements.

Since many areas, particularly older cities, have unique or unusual aspects of transit operations, the final legislation should contain waiver provisions for safety considerations.

(2) The SEPTA negotiations on a key station plan would serve as a successful model for Section 203(i)(1) of the Senate legislation. We agree with the Senate Committee that it is best to leave the selection of which stations are key to each locality. While our own negotiations with the disabled community generally involved such criteria as high ridership, major transfer points, and balanced regional coverage, they also considered physical constraints, cost and funding availability. We believe that the relative importance of such criteria should be locally determined, and that specific key station criteria are unnecessary and would be difficult to administer. (3) Section 203(c) of the Senate bill creates a requirement for full bus and key rail station accessibility RIM extensive paratransit service. This will be very expensive to provide, and no funding is available for additional services.

The Senate Labor and Human Resources Committee Report interprets this provision of the act to require supplemental paratransit service to meet extensive service criteria.

The Senate Committee report effectively provides that public transportation operators are responsible for overcoming all mobility barriers faced by the disabled. Public transportation operators would be required to compensate for lack of adequate municipal facilities such as curb cuts and sidewalks; and ineffective or underfunded human service agency transportation programs.

Eligibility for supplemental paratransit service is not well defined in the Senate bill. The phrase "unable to use mainline transportation" can be broadly or narrowly interpreted. Our experience has been that people often prefer to use paratransit because it is difficult, but not impossible, for them to use accessible fixed-route service. Congress should avoid mandating a broad eligibility criteria for supplemental paratransit because it will perpetuate costly dual services for the disabled. We believe the majority of the disabled would opt for the convenience of door-to-door services and the expenditure to retrofit our nation's public transit systems will only serve a small segment of the disabled population.

(4) The Senate Committee report calls for developing programs to provide mobility training for people with diverse disabilities, such as visual and hearing impairments and mental retardation. Transportation of large numbers of people is the business of public transit operators. The industry does not have the expertise to understand the needs and provide mobility training for people with such a variety of special needs. (5) Short response time requirements for paratransit service can create expensive vehicle requirements and scheduling inefficiencies. The Senate report language raises questions as to what is intended as a comparable response time. It in totally unrealistic to require that paratransit response times be equivalent to fixed route headways, and the committee report language should be revised to clearly reflect this. SEPTA operates many bus routes with headways between five and fifteen minutes. Such a response time requirement is clearly impossible to meet; similar response times are not even available with taxi service. If paratransit service is intended to be truly supplemental, we recommend a response time no shorter than twenty-four hours, to permit efficient scheduling and routing of vehicles, in many cases utilizing existing computerized systems which have been developed at considerable expense.

(6) While supplemental paratransit services are only required to the extent that they do not "impose an undue financial burden," the term "undue financial burden" is not clearly defined. We are greatly concerned about the increased cost of compliance with this bill at a time when the federal government is continuing to reduce assistance to public transit. For example, in the last ten years: Operating assistance has been reduced by 50 percent; capital assistance is down by 64 percent in terms of real buying power; and the transit trust fund is frozen.

In this context, public transit authorities must resist any mandates which are unfunded, especially in the face of demands for expanded service of all types.

For many transit authorities, any additional expense for which new funding is not provided constitutes an undue financial burden, insofar as fares must be raised or

other services cut in order to provide new services. We would point out that fare increases and service reductions cause serious hardship to other low and fixed income riders, many of whom have no alternative means of transportation. Therefore, we strongly urge the Congress to fund the increased cost of compliance with the Americans with Disabilities Act.

(7) Finally, we endorse the employment provisions of the Senate bill, with one minor exception. SEPTA has employed the disabled for many years, some of whom are employees who were injured on the job. The Authority has already made “reasonable accommodations” at a number of work locations for its employees.

However, we take exception to the requirement to hire qualified readers for the blind and interpreters for deaf employees. Such a requirement makes it necessary to hire two individuals in order to obtain the production of one person. In a public service expense environment which is constrained by diminishing subsidy and pressure to improve productivity, such a rule would be exceedingly burdensome.

In conclusion, I believe that this Act can provide for major improvements to the lives of many disabled Americans. However, the language of the proposed legislation must be revised and clarified to prevent lengthy and expensive court battles following the issuance of regulations pursuant to the act. Changes must be made to provide for realistic implementation requirements and schedules, and funding must be included for public service providers who will be expanding and improving their services to the disabled.

Thank you for the opportunity to testify before you today.

PREPARED STATEMENT OF THOMAS GAGLIANO, EXECUTIVE DIRECTOR, NEW JERSEY

TRANSIT

Thank you for the opportunity to submit for the record NJ Transit's views on H.R. 2733, the Americans with Disabilities Act. I am sorry that I was not able to appear at the Commerce Committee hearing on September 28, 1989 to personally deliver this testimony, but I respectfully submit this information for the hearing record.

NJ Transit provides bus service on approximately 177 commuter and local bus routes and 11 rail lines. The Newark City Subway is a 4.5 mile system that operates within the city of Newark.

NJ Transit directly provides service to 215,000 bus and subway riders a day throughout the state. Private bus companies under service contracts or subsidy agreements serve thousands of additional riders daily. NJ Transit commuter rail service carries 85,000 people each day throughout the state and into midtown Manhattan and Rockland County in New York. Service to Atlantic City, resumed in mid-September of this year, is expected to carry between 1200 and 1500 people daily. NJ Transit Bus operates a 1,901 bus fleet. The average age of the NJ Transit bus fleet is approximately 4.5 years, compared to the national average of 7.8 years.

NJ Transit Rail operates on 394.1 rail route miles. All commuter rail lines are owned by NJ Transit, except for the Northeast Corridor (NEC) owned by Amtrak and a section of the Raritan Valley line. The NJ Transit rail fleet consist of 81 locomotives and approximately 600 rail cars.

NJ Transit works closely with all 21 New Jersey counties in the development of special transportation services for the elderly and the handicapped. NJ Transit through the Federal Section 16(b)2 program and Section 18 program provides local governments with capital and operating subsidies for locally provided accessible transportation services. Further, through New Jersey's Casino Revenue Fund, NJ Transit distributed $11.2 million in fiscal year 1989 to counties for transportation services. As a condition for receiving funding, each county must submit an annual plan that describes the nature of the services to be provided. These plans are reviewed and approved by the NJ Transit Special Services Citizen Advisory Committee.

With regard to its impacts on commuter railroads, NJ Transit fully supports 2733. We have developed aggressive policies aimed at providing accessibility throughout the rail system. H.R. 2733 would reinforce and strengthen the policies we currently have in place.

Of the three terminal points on NJ Transit's rail system, Newark Penn Station is already accessible. Both New York Penn Station and Hoboken Terminal will be made accessible within the next few months. In Hoboken, accessibility will be accomplished through the use of a portable wheelchair lift which can be moved to any platform where it is needed.

Of the 158 rail stations on NJ Transit's system, 17 (more than 10 percent) are already accessible. It is our policy that any station that undergoes major rehabilitation or new construction be made accessible. In addition, we are in the process of installing minihigh level platforms at key stations throughout New Jersey's rail network. Nine of these platforms will be installed during fiscal 1990, ten in fiscal 1991, and ten in fiscal 1992. In all, approximately $1 million will be spent in the next three years to make New Jersey's rail lines accessible. The money is provided through the New Jersey's casino Revenue Fund, a source of funding dedicated to help the elderly and handicapped citizens of our state.

Our long-term goal is to make the entire commuter rail system accessible. We are proud of our successes so far. The Northeast Corridor Line will be completely accessible by the end of fiscal 1990. The Raritan Valley Line will have at least three accessible key stations, and the North Jersey Coast Line will have at least five. In addition, the new Atlantic City Rail Line is entirely accessible.

On the Hoboken Division, only one station, Summit, is accessible to date. However, we are about to undertake a study of the lines which terminate in Hoboken to determine which stations should be identified as key stations and receive minihigh level platforms. At the completion of the study within the next twelve months, our aggressive accessibility efforts will be expanded to include the Hoboken lines.

Of course, accessibility of stations is only part of the picture. Accessibility is included in any new rail car purchase NJ Transit undertakes. Regarding existing equipment, we have found that cab cars are accessible to wheelchair users, and it is therefore no hardship to ensure that one car on each commuter train is accessible. In summary, I wholeheartedly support Congress' effort to provide all of the nation's citizens with the civil right of mobility. I believe H.R. 2733 accomplishes this goal in a fair and reasonable manner with respect to railroads.

In addition to our commuter railroad, NJ Transit operates a light rail, commuter bus, and transit bus system. We have made a substantial effort to provide accessibility in as many of our service areas as possible. However, there are some technological limitations with regard to the light rail and commuter bus accessibility which we have been unable to overcome. The following outlines those limitations.

NJ Transit currently provides accessible bus service at a minimum of every 30 minutes on local bus lines. Commuter bus accessibility is provided on a 24 hour reservation basis. The reservation system is necessary because the ability to lift-equip certain commuter buses is constrained by technology and because there are very few accessible platforms within the Port Authority Bus Terminal. Special arrange ments must be made to ensure that a bus carrying a person with a wheelchair is directed to an accessible platform within the terminal.

While we generally support the intent of H.R. 2733 to ensure that buses are fully accessible, we believe it would be appropriate to provide an exemption where technology precludes accessibility, or where technological deficiencies would cause significant operating problems. For example, a 96-inch width restriction in the Lincoln Tunnel precludes NJ Transit, from using the standard 102-inch commuter bus. Manufacturers have informed us that it is infeasible to construct a wheelchair lift for a 96-inch commuter bus. Further, we believe an exemption is warranted where terminals preclude full access, such as the Port Authority Bus Terminal (PABT). Since H.R. 2733 would not require the PABT to increase its accessibility until it undergoes construction for other reasons, it would be unreasonable to require that all buses entering the terminal be accessible. Suggested language to provide these two exemptions is provided as attachment 1.

NJ Transit's 4.5 mile light rail system, the Newark City Subway, is not currently accessible, although there is accessible bus service running parallel to it. H.R. 2733 groups light rail systems with commuter, rapid, and intercity rail and requires that at least one car per train be accessible. However, many light rail systems, including the Newark City Subway, operate one car trains at a time. The one car per train requirement would require all cars to be accessible in this type of operation. Further, while the bill does not for the most part require retrofitting of existing equipment to achieve accessibility, the one car per train requirement in the case of the Newark City Subway could only be achieved through an expensive retrofit or through the premature purchase of now equipment. Although the Presidential Conference Cars in use on this system are forty years old, a rehabilitation project begun in 1987 has extended their expected useful life for at least 10 years. NJ Transit proposes that it would be within the spirit of the bill, to provide an exemption to the one car per train requirement in cases where the requirement would result in retrofitting existing equipment. Attachment 2 provides language for this proposed amendment.

The Newark City Subway also provides a unique situation with regard to the requirement for accessibility of key stations on light rail systems. The Subway was built in the 1930's, at a time when elevator access was not a common element in station designs. Nine of the eleven stations on the system would require the addition of elevators for accessibility. The design of many of the stations is such that it would be structurally impracticable to add elevators. The subway was rehabilitated in 1983 at a cost of $19.2 million and the additional cost of redesigning and reconstructing the 50-year-old stations to provide accessibility would be prohibitive. Section 402(B)(6) of the bill provides exemptions to accessibility requirements for newly constructed businesses where it is "structurally impracticable" to do so. A similar exemption should be provided for key light rail station accessibility.

NJ Transit administers funding for and oversees an extensive paratransit system throughout the state. A total of 859 paratransit vehicles have been distributed in the last six years to counties and local agencies which provide transportation to elderly and disabled persons in their communities. In administering the paratransit program, NJ Transit considers the mobility needs of the community as well as the

cost of the service.

H.R. 2733 would require a level of paratransit service "comparable" to the level of service provided on a fixed route basis. While we agree with the need for the Federal government to guarantee disabled citizens the civil right of access to public transportation, the issue of mobility as provided through a paratransit system must, remain a local issue. Some communities may elect to provide paratransit services where no fixed route service exists. Others who have fixed-route service may determine that local conditions do not require comparable paratransit services, and the resources may be more efficiently used elsewhere. New Jersey's paratransit system has been developed with the input of the local disabled community. A Federal requirement for a comparable paratransit system in conjunction with a fixed-route transit system would inappropriately interfere with this local decisionmaking proc

ess.

Further, the cost of providing a level of paratransit service comparable to NJ Transit's fixed-route bus and commuter rail systems would be prohibitive. At a time when Federal and state funding is limited, compliance with this requirement could lead to cutbacks in other services that NJ Transit provides. While the Senate bill provides for exemptions in cases of "undue hardship," without definition of this phrase it is difficult to determine how it would be interpreted. I strongly urge that the requirement for a comparable level of paratransit service be deleted from the bill so that decisions on how to allocate the limited resources available for the mobility of all citizens remain at the local level.

NJ Transit supports the basic intent of H.R. 2733. As I have noted, we have a long history of working with the disabled community in New Jersey to ensure that our service is accessible to the greatest extent feasible given financial and technological limitations. Our record demonstrates that we understand the importance or providing disabled citizens with the essential civil right of mobility. I would respectfully request that H.R. 2733 be amended to recognize these difficulties. I believe such amendments can be structured so as not to interfere with the civil rights of disabled citizens.

ATTACHMENT 1

Language included in S.933 (Section 203(e)) provides for temporary relief where lifts are unavailable. NJ Transit urges that this section be included in the H.R. 2733, and that a new paragraph be added to this section as follows (proposed new language is italic).

Section 203

(e) Temporary Relief Where Lifts are Unavailable . .

(3) that the public entity seeking temporary relief had made good faith efforts to locate a qualified manufacturer to supply the lifts to the manufacturer of such buses in sufficient time to comply with such solicitation; and

(4) that if a qualified manufacturer had been found, the bus manufacturer was unable to certify that installation of the lift would not impact the structural integrity, operating performance, and warranty of the bus; and

(5) that any further delay in purchasing new buses necessary to obtain such lifts would significantly impair transportation services in the community served by the public entity.

NJ Transit further urges that a new Section 203(f) be added to the bill as it was passed by the Senate which reads:

Temporary relief where terminals are not accessible.-With respect to the purchase of new buses, a public entity may apply for, and the Secretary of Transportation may temporarily relieve such public entity from the obligation to purchase new buses that are readily accessible to and usable by individuals with disabilities if such public entity demonstrates that the terminal to be served by the buses is not readily accessible. Such temporary relief will end if the terminal is made accessible under the terms of this Act.

ATTACHMENT 2

Section 303(g)(2) should be changed to read as follows:

(2) Intercity, Rapid, Light, and Commuter Rail Systems.

(a) Except as provided in paragraph (b) of this section, with respect to vehicles operated by intercity, light, rapid and commuter rail systems, for purposes of this Act and section 540 of the Rehabilitation Act of 1973 (29 U.S.C. 794), it shall be considered discrimination for an individual or entity to fail to have at least one car per train that is accessible to individuals with disabilities, including individuals who use wheelchairs, as soon as practicable but in any event in no less than 5 years.

(b) The Secretary has the authority to grant an exemption to the provision in paragraph (a) above if the provision would result in retrofitting all existing vehicles because a transit authority operates only one car train.

Hon. Thomas A. Luken,

AMERICAN ASSOCIATION OF American RailROADS,
Washington, DC, November 10, 1989.

Chairman, Subcommittee on Transportation and Hazardous Materials, Committee on Energy and Commerce, House of Representatives, Washington, DC.

Re: Hearings on H.R. 2273, “Americans with Disabilities Act of 1989"

DEAR MR. CHAIRMAN: On September 28, 1989 you chaired a hearing on H.R. 2273 which has the laudable and universally supported objective of eliminating discrimination against individuals with mental or physical disabilities. Unfortunately this proposed legislation is so broad and ambiguous that employees, prospective employees, and employers will have no clear guidance as to their rights and obligations. We request that this letter be included in the record of your hearings.

The railroads have concerns with provisions in these bills which are undoubtedly shared by other employers, but also anticipate problems which will be unique to the railroad industry.

Of general concern is Section 205 which provides for enforcement through the remedies set forth in Title VII of the Civil Rights Act of 1964 and the remedies and procedures available under Section 1981 of the Revised Statutes (42 U.S.C. sec. 1981). This latter section provides for suits by individuais without prior administrative requirements and permits jury trials with a variety of potential damages, including punitive damages. Litigation can be instituted on the bare allegation that an individual is ". . . about to be subject to discrimination."

The availability of Section 1981 procedures and remedies would afford a redundant avenue of litigation even though the Title VII procedures and remedies have proven workable and equitable and include the opportunity for court action when individuals are not satisfied with administrative results. On the other hand, Section 1981 would afford a hunting license to plaintiffs and their attorneys without any incremental effect in preventing discrimination and often with the effect of penalizing an employer when no discrimination has occurred. In passing S. 933 the Senate rejected the proposed private cause of action under section 1981 of the Revised Statutes. We recommend that the House also reject this proposal.

The vague standards in the legislation can only lead to expensive and burdensome litigation. Title II would define a “qualified individual with a disability” as one who can perform the "essential functions of ah employment position." This not only will require defining the "essential functions" of every position a person with a disability holds or desires, but undoubtedly will lead to litigation. Section 202 provides that discrimination includes “denial . . . because of the need for reasonable accommodation" and limits "reasonable accommodation" to arrangements or actions which would not cause "undue hardship on the operation of its (the employer's) business." The term "undue hardship" lacks definition and could be interpreted as imposing no real limitation on the nature of required accommodations. The Act thus creates rights and obligations with little or no guidance as to which attempts to comply will satisfy the Act. The Equal Employment Opportunity commission is to issue regula