T.

4/30/92
SBO:SK:hb
DJ# 181-06-0003 MAY 4 1992

Ms. Susan Perry

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

Dear Ms. Perry:

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 transporta-
tion, 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.

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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

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BEFORE 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 con-
gruent 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 govern-
ment-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)

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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 dis-
abilities could be arriving or departing
at any gate, and because inaccessible
facilities could result in a total denial
of transportation services, it is reason-
able to require that newly constructed
transit facilities be accessible, regard-
less 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 pro-
vided 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
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01-00702