T. 4/30/92 SBO:SK:hb DJ# 181-06-0003 Ms.

Susan Perry Senior Vice President Government Relations American Bus Association 1015 - 15th Street, N.W., #250 Washington, D.C. 20005 Dear Ms. Perry:

MAY 4 1992

This is in response to your petition for reconsideration or clarification of the Department of Justice's final rule implementing title III of the Americans with Disabilities Act (ADA) with respect to application of the elevator exemption to transportation terminals. As explained in the preamble to the final regulation, the elevator exemption is an exception to the requirement for "ready access" to floors above and below the ground level for certain small buildings (i.e., a facility that is less than three stories or has less than 3000 square feet per story), where such access would require installation of an elevator. The ADA provides an exception to the elevator exemption for buildings housing a shopping center, shopping mall, or the professional offices of a health care provider, or other category determined by the Attorney General. In issuing the final regulation, the Attorney General determined that the elevator exemption should not apply to terminals, depots, or other stations used for specified public transportation, or airport passenger terminals because of the significance of transportation services for individuals with disabilities. The Department, however, provided in the final regulation that the requirement applies only to those areas used for passenger loading and unloading and for other passenger services. This approach is similar to that used for the other types of facilities that are ineligible for the elevator exemption. cc: Records; CRS; Oneglia; Kaltenborn; hb UDD: Kaltenborn(Susan Perry 1)(PB)FOIA ​ -2-

Example 3 at page 35580 of the preamble explains that when all retail stores that make a facility a "shopping center" are located on the first floor, elevator access need not be provided to the offices on the second floor. Likewise, if all passenger service areas of a terminal are located on the ground floor, S36.401(d) (2) (ii) of the regulation does not require elevator access to other floor levels of the building. Thus, the amendment you have proposed is unnecessary since elevator access in not required when passenger services are provided exclusively at the ground level. The only requirement is that any area housing passenger services, including boarding debarking, loading and unloading, baggage claim, dining facilities, and other common areas open to the public, be on an accessible route from an accessible entrance. We hope this information is helpful to you. Sincerely John R. Dunne Assistant Attorney General Civil Rights Division BEFORE THE DEPARTMENT OF JUSTICE ______________________ 28 CFR PART 36 NONDISCRIMINATION ON THE BASIS OF DISABILITY BY PUBLIC ACCOMMODATIONS AND IN COMMERCIAL FACILITIES; FINAL RULE _________________________ PETITION OF THE AMERICAN BUS ASSOCIATION FOR RECONSIDERATION OR, IN THE ALTERNATIVE, CLARIFICATION

_________________________ Enclosed for convenient reference is a copy of Comments of the American Bus Association (ABA) in response to the Notice of Proposed Rulemaking in the above-captioned proceeding. In the preamble to the final rule pertaining to the elevator exemption, it is stated that no one opposed adding terminals, depots, and stations used for specified public transportation to the nonexempt categories. As indicated by the attachment to this petition, that statement is not correct. ABA opposed the removal of the elevator exemption for bus terminals and stations because At all bus terminals and stations, with relatively few exceptions, buses arrive and depart, load and unload only at ground level. No services are provided for passengers on the second floor or above. ABA then suggested specific language to address the unique characteristics of intercity bus terminals and stations. Section 401(d)(2)(ii) of the rule reads as follows: A terminal, depot, or other station used for specified public transportation, or an airport passenger terminal. In such a facility, any area housing passenger services, including boarding and debarking, loading and unloading, baggage claim, dining facilities, and other common areas open to the public, must be on an accessible route from an accessible entrance. We have no problem with this requirement if it is satisfied by compliance with the second sentence. In all new construction or alterations contemplated by members of ABA, there would be an accessible route from an accessible entrance to all areas of the facility housing passenger services.

For the reasons set forth above, ABA urges that the elevator exemption with respect to bus terminals and stations be reconsidered or, in the alternative, that the purpose and effect of the exemption be clarified. - 2 -​ Respectfully submitted, Susan Perry Senior Vice President Government Relations American Bus Association 1015 15th Street, N.W.-#250 Washington, DC 20005 DATED: August 12, 1991 -3BEFORE THE DEPARTMENT OF JUSTICE ________________________ 28 CFR PART 36 NONDISCRIMINATION ON THE BASIS OF DISABILITY BY PUBLIC ACCOMMODATIONS AND IN COMMERCIAL FACILITIES; PROPOSED RULE _______________________ COMMENTS OF AMERICAN BUS ASSOCIATION _______________________ These Comments are filed by the American Bus Association ("ABA") in response to the Notice of Proposed Rulemaking published in the Federal Register on February 22, 1991 (56 Fed. Reg. 7452). The proposed rule implements title III of the Americans With Disabilities Act ("ADA") which prohibits discrimination on the basis of disability by private entities in places of public accommodation.

ABA is the national trade association for the intercity bus industry. The Association has over 600 operator members. All of these members are private entities who are primarily engaged in the business of transporting passengers and who operate over-the-road buses as defined in section 301(5) of the ADA. ABA's particular interest in this proceeding stems from its members' operation of terminals, which subparagraph (G) of section 301(7) specifically includes in the definition of "public accommocation." Sec. 36.104--Definitions--Current Illegal Use of Drugs The term, "current illegal use of drugs," is defined as follows in section 36.104: Current illegal use of drugs means illegal use of drugs that occurred recently enough to justify a reasonable belief that a person's drug use is current or that continuing use is a real and ongoing problem. This definition is taken verbatim from the Report of the Conference Committee. H. Conf. Rep. No. 596, 101st Cong., 2d Sess. 64 (1990). The definition is obviously congruent with Congressional intent and we urge its adoption. We note, however, that the Equal Employment Opportunity Commission has proposed a somewhat different definition of "current illegal use of drugs."1 In the interest of government-wide consistency, we hope the Department of Justice will be able to persuade EEOC that its definition of "current illegal use of drugs" is preferable. 1 Equal Employment Opportunity for Individuals With Disabilities--EEOC Notice of Proposed Rulemaking, 56 Fed. Reg. 7452 (February 28, 1991) - 2 -​ Secs. 401(d) and 404(a)--Elevator Exemption Section 303 (b) of the ADA provides that requirements for new construction and alterations in public accommodations

and commercial facilities in section 303(a)shall not be construed to require the installation of an elevator for facilities that are less than three stories or have less than 3,000 square feet per story . . . unless the Attorney General determines that a particular category of such facilities requires the installation of elevators based on the usage of such facilities. In sections 36.401(d) and 36.404(a) of the regulations, the Department of Justice proposes not to apply the elevator exemption to: A terminal, depot, or other station used for specified public transportation, or an airport passenger terminal. In the preamble to the proposed rule, the following reason is given for adding passenger terminals, depots, and other stations to the nonexempt category: It is not uncommon for an airport passenger terminal or train station, for example, to have only two floors, with gates on both floors. Because of the significance of transportation, because a person with disabilities could be arriving or departing at any gate, and because inaccessible facilities could result in a total denial of transportation services, it is reasonable to require that newly constructed transit facilities be accessible, regardless of square footage or number of floors. 56 Fed. Reg. 7475. At all bus terminals and stations, with relatively few exceptions, buses arrive and depart, load and unload only at - 3 -​ ground level. No services are provided for passengers on the second floor or above. Since the reason for the proposed

regulation has no relevance to intercity bus operations, ABA urges that section 401(d)(ii) relating to new construction and section 404(a) relating to alterations be amended by adding the following language at the end of each section: A bus terminal or bus station shall be eligible for the elevator exemption if buses arrive and depart and load and unload exclusively at ground level and if no services for passengers are provided on the second story or above. If the proposed amendment were adopted, two-story bus terminals and stations would be treated in the same way as a building which houses retail stores "exclusively on the ground floor, with only office space (not professional offices of health care providers) on the second. (56 Fed. Reg. 7475, par. 3). It is especially important to eliminate unnecessary economic burdens on the intercity bus industry which (1) provides the most economical form of transportation, (2) is virtually unsubsidized, and (3) is only marginally profitable. Respectfully submitted, Susan Perry Senior Vice President Government Relations American Bus Association 1015 15th Street, N.W.-#250 Washington, DC 20005 (202) 842-1645 DATED : April 23, 1991 DUE : April 23, 1991 -401-00702