36 CFR Part 1192 Americans with Disabilities Act (ADA) Accessibility Guidelines for Transportation Vehicles (2016 Non-Rail Vehicle Guidelines) - Preamble

C. Chapter 2: Scoping Requirements

Chapter 2 in the 2016 Non-Rail Vehicle Guidelines has been substantially reorganized to present a more simplified approach. Whereas nearly all scoping provisions for buses, OTRBs, and vans in the 2010 NPRM were “nested” as subsections to a single section (former T203), in the final rule, each discrete feature or set of related requirements—such as, steps (T203), doorways (T204), illumination (T205), and handrails, stanchions, and handholds (T206)— has been assigned its own scoping section. Some scoping provisions have also been editorially revised for clarity. While the Access Board believes the modifications to the organization and text of provisions in Chapter 2 represent improvements, none of these changes were intended to alter the substantive scope of the final rule.

With the exception of the scoping requirements for automated announcement systems, relatively few commenters to the 2010 NPRM addressed the scoping provisions. Most matters raised by commenters related to scoping for the automated announcement system requirement are discussed above in Section III (Major Issues), and will not be repeated here. However, there remain a few scoping-related matters raised by commenters that have not been previously addressed, and these matters are discussed below. Significant comments on other proposed scoping provisions are also discussed in this section.

T201 General

Buses, OTRBs, and vans acquired or remanufactured by entities covered by the ADA must comply with the scoping requirements in Chapter 2 to the extent required by DOT’s implementing regulations for ADA-covered transportation vehicles, which, when revised, are required to use the 2016 Non-Rail Vehicle Guidelines as minimum accessibility standards. Two transit agencies and a bus manufacturer expressed concern about, or requested clarification of, the application of the requirements in the final rule to existing or remanufactured non-rail vehicles. Implementation and enforcement of the 2016 Non-Rail Vehicle Guidelines is within the sole authority of DOT, not the Access Board. The Access Board is statutorily tasked under the ADA with establishing minimum guidelines for the accessibility of ADA-covered transportation vehicles. Whether DOT ultimately elects to make its regulations applicable to then-existing ADA-covered vehicles, and, if so, to what extent, remains within the sole province of that agency. Consequently, compliance with the 2016 Non-Rail Vehicle Guidelines is not required until DOT adopts these guidelines as enforceable accessibility standards.

T202 Accessible Means of Boarding and Alighting

All buses, OTRBs, and vans covered under the 2016 Non-Rail Vehicle Guidelines must provide at least one means of accessible boarding and alighting that serves all designated stops on the assigned route to which the vehicle is assigned. These vehicles must also provide access to the roadway in the event passengers must be offloaded where there is no platform or curb. Provision of accessible boarding and alighting may be accomplished through the use of ramps and bridgeplates, lifts, or level boarding and alighting systems that meet the technical requirements in Chapter 4. Accessibility requirements for level boarding bus systems are new to the 2016 Non-Rail Vehicle Guidelines because the advent of such transit systems (e.g., bus rapid transit systems) post-dated the issuance of the existing guidelines in 1991. Only two commenters expressed views on this scoping section, and both supported the Access Board’s inclusion of requirements for level boarding bus systems.

T206 Handrails, Stanchions, and Handholds

The 2016 Non-Rail Vehicle Guidelines, as with the existing guidelines, require handrails, stanchions, or handholds to be provided at passenger doorways, fare collection devices (where such devices are otherwise provided), and along onboard circulation paths. Large non-rail vehicles must generally provide stanchions or handholds on forward- and rear-facing seat backs. Handrails, stanchions, and handholds must comply with the technical requirements in T303.

In response to three separate comments from a bus manufacturer, seating manufacturer, and transit agency, the text of T206 has been revised and an exception for high-back seats, such as those often found on OTRBs, has been added. The text revisions clarify that, where stanchions or handholds are provided on front- and rear- facing seat backs, they must be located adjacent to the aisle so that passengers may use them when moving between aisles and seats. The new exception provides that, for high-back seats, overhead handrails are permitted in lieu of stanchions or seat-back handholds.

T207 Circulation Paths

As a matter of clarification, the proposed rule specified that, where doorways are provided on one side of a non-rail vehicle, an accessible circulation path must connect each wheelchair space to at least one doorway with accessible boarding and alighting features. See 2010 NPRM, Section T203.4.2. Where doorways are provided on two sides of a vehicle, the proposed rule provided that an accessible circulation path must connect each wheelchair space to at least one doorway with accessible boarding and alighting features located on each side of the vehicle. Id. Additionally, the proposed rule provided that an accessible circulation path must connect each wheelchair space to at least one accessible doorway (i.e., a doorway from which an accessible boarding and alighting feature can be deployed to the roadway). Id.

The Access Board received several comments from disability rights organizations and individuals with disabilities in support of this clarifying language, and no commenters expressed disagreement with this approach. The 2016 Non-Rail Vehicle Guidelines retain this clarification on the scoping for circulation paths.

T210 Wheelchair Spaces

Under the 2016 Non-Rail Vehicle Guidelines, large non-rail vehicles must provide at least two wheelchair spaces, and small non-rail vehicles must provide at least one wheelchair space. Wheelchair spaces must also be located as near as practicable to doorways that provide accessible boarding and alighting features and comply with the technical requirements in T602. The requirements remain unchanged from the proposed rule.

A van manufacturer suggested, in response to the 2010 NPRM, that the Access Board add language in the final rule that would allow additional spaces, even if they do not meet the minimum required dimensions. The Board declines to add this requested text. Additional wheelchair spaces are already permitted under the existing guidelines, and the same language has been carried over into the 2016 Non-Rail Vehicle Guidelines. See T210.3. (“Small non-rail vehicles shall provide at least one wheelchair space complying with T602.”) (emphasis added). Neither the existing guidelines nor the revised guidelines in the final rule preclude additional wheelchair spaces beyond the minimum, but they do require each space—for safety reasons—to provide compliant securement systems, as well as seat and shoulder belts.

T211 Wheelchair Securement Systems

Wheelchair securement systems complying with the technical requirements in T603 must be provided at each wheelchair space. The Access Board received several comments on the proposed technical provisions addressing wheelchair securement systems, and these comments are discussed under Chapter 6.

T213 Seats

The 2010 NPRM proposed that non-rail vehicles operating in fixed route systems be required to designate at least two seats as priority seats for passengers with disabilities. See 2010 NPRM, Section T203.10.1. The priority seats must be located as near as practicable to a doorway used for boarding and alighting. This is similar to the requirement that wheelchair spaces be located as near as practicable to a doorway used for boarding and alighting. Where aisle-facing seats and forward-facing seats are provided, at least one of the priority seats must be forward facing.

Comments were received from a bus manufacturer and a transit operator seeking clarification whether flip up seats used in wheelchair spaces could also be designated as priority seats. There is nothing in the 2016 Non-Rail Vehicle Guidelines that prohibits such an approach. The same bus manufacturer also sought clarification concerning whether aisle-facing priority seats must be provided, even if none are near a doorway. When there is one or more aisle-facing seats on a fixed route non-rail vehicle, at least one of these seats must be designated as a priority seat. If there is only one aisle-facing seat on a fixed route non-rail vehicle, then that seat must be designated as a priority seat regardless of its location. If, however, a fixed route non-rail vehicle has more than one aisle-facing seat, then the transit operator has the discretion to designate as a priority seat whichever aisle seat it deems “as near as practicable” to a passenger doorway.

T215 Communication Features

The scoping provisions for communication features address a number of different areas, including: signs or markers for priority seats, identification of wheelchair spaces and doorways that provide accessible means of boarding and alighting with the International Symbol of Accessibility, provision of exterior route or destination signs, and automated announcement systems on large non-rail vehicles that operate in fixed route service with multiple designated stops.

In the 2010 NPRM, the scoping requirements for communication features were scattered throughout Chapter 2. In the 2016 Non-Rail Vehicle Guidelines, all scoping requirements related to communication features have been reorganized and consolidated under a single section, T215. Other than this reorganization and some minor editorial changes to the text of certain provisions to improve clarity, the scoping provisions in the 2016 Non-Rail Vehicle Guidelines for communication features are the same as in the proposed rule.

With respect to signage for priority seats, the 2010 NPRM proposed that priority seats for passengers with disabilities be identified by signs informing other passengers to make such seats available for passengers with disabilities. These signs would be required to comply with the technical requirements in T702. (Section T702, in turn, addresses such matters as character style and height, line spacing, and contrast.) See 2010 NPRM, Sections T203.10.2, T702. No commenters expressed disagreement with these scoping provisions. However, several persons with disabilities noted their frustration that priority seats on buses are often occupied by passengers who may not need them or filled with other passengers’ personal belongings (such as packages or strollers), and urged the Access Board to address this issue in the final rule.

While the Board acknowledges that ensuring the availability of priority seats for passengers with disabilities is a frequent problem, resolution lies beyond this final rule. This is a programmatic and service issue that falls outside the Access Board’s jurisdiction and, in any event, is a matter best left to DOT and transit operators. Disabilities are not always visible or apparent, and it can be difficult to discern whether a passenger has priority to use a designated seat. The requirement for signage at priority seats is aimed at helping to ensure that people with disabilities have priority use of these seats. However, there is nothing in the 2016 Non-Rail Vehicle Guidelines (or, for that matter, current DOT regulations) requiring other passengers to make the seats available, or mandating that vehicle operators make passengers move from priority seats when, in their view, such passengers do not need them. Nonetheless, transit operators are encouraged to make efforts, as appropriate for their systems and localities, to ensure that priority seats are available for passengers with disabilities when needed.

Section T215 in the 2016 Non-Rail Vehicle Guidelines also establishes several new communication-related scoping requirements for OTRBs. These new provisions, as applied to OTRBs, relate to: identification of priority seats (with signs) and wheelchair spaces and accessible doorways (with the International Symbol of Accessibility) (T215.2.1, T215.2.2, and T215.2.3); exterior route or destination signs (T215.2.4); public address systems (T215.3.1); and stop request systems (T215.3.3). While these requirements are new to OTRBs, they have all been in effect for buses and vans since the existing guidelines were first promulgated in 1991. No comments were received on these scoping provisions as newly applied for OTRBs. The expected costs for these new OTRB requirements are discussed below in Section V.A (Regulatory Process Matters - Final Regulatory Assessment (EO 12866)).

Lastly, T215.3 in the 2016 Non-Rail Vehicle Guidelines sets forth scoping requirements for announcement systems on large non-rail vehicles operating in fixed route service that stop at multiple designated stops. These requirements address: public address systems, stop request systems, and automated route identification and stop announcement systems. The Access Board received a substantial number of comments relating to the issue of whether large transit agencies should be required to equip their large fixed route buses with automated announcement systems, and these comments are addressed above in Section III (Major Issues). Several other commenters sought clarification on how this requirement would apply in particular settings. These comments are discussed below.

First, a large transit agency, while noting that its fixed route bus fleet was already equipped with automated announcement systems, nonetheless expressed concern about the cost of complying with the automated announcement system requirement to the extent it would apply to its small fleet of large paratransit vehicles, which do not have such equipment installed. This commenter urged the Access Board to expressly exempt paratransit vehicles from the automated announcement system requirement. The Board declines to adopt this suggestion because no such exception is needed. By its terms, the automated announcement system requirement applies only to large non-rail vehicles operating in fixed route service with multiple designated stops. See T215.3, T215.3.2, and T215.4. Fixed route service, in turn, is defined as “[o]peration of a non-rail vehicle along a prescribed route according to a fixed schedule.” T103. Paratransit service, by nature, does not operate on either prescribed routes or fixed schedules. Accordingly, paratransit service does not qualify as “fixed route service,” and, therefore, is not subject to the automated announcement system requirement.

Second, a state-wide association of transit managers asked the Access Board to clarify how the VOMS 100 threshold applies to contractors that provide fixed route bus service for public transit agencies. “Large transit entity,” which is a newly defined term in T103, refers to providers of public transportation services that “operat[e] . . . 100 or more buses in annual maximum service for all fixed route service bus modes collectively, through either direct operation or purchased transportation.” Thus, for purposes of determining whether a transit operator is a “large transit entity” subject to the automated announcement system requirement, both directly operated and purchased (i.e., contracted) transportation services “count” towards the VOMS 100 threshold. This approach is consistent with DOT’s current accessibility standards for ADA-covered transportation vehicles, which specify that public entities entering into contractual arrangements with private entities for provision of fixed route service must ensure that the private entity satisfies the same accessibility requirements that would be applicable as if the public entity directly provided that same service. See 49 CFR 37.23; see also 49 CFR 37.3 (defining the term “operates” to include both directly operated and purchased transportation services).

Third, a number of commenters, including APTA and several transit agencies, sought clarification concerning application of the automated announcement system requirement to existing buses. APTA stressed that restricting the scope of this requirement to new (or newly acquired) buses was important to ensure that large transit agencies that do not yet have automated announcement systems would be able to acquire needed equipment through their regular procurement cycles, and smaller transit agencies nearing the VOMS 100 threshold were not inadvertently limited from expanding their fixed route service.

As discussed at the outset of this section (see T201 Scope), determining whether (or to what extent) the automated announcement system requirement will apply to existing buses falls within the purview of DOT, not the Access Board. The 2016 Non-Rail Vehicle Guidelines, as with our existing guidelines, establish minimum accessibility guidelines for buses, OTRBs, and vans acquired or remanufactured by entities covered by the ADA. See T101.1, T201.1. These revised guidelines, however, only become enforceable standards upon adoption by the Department of Transportation (DOT). Whether DOT elects to make its regulations applicable to then-existing ADA-covered transportation vehicles, and, if so, to what extent, remains within its sole discretionary authority. Consequently, views on the application of the automated announcement system requirement to existing buses are best directed to DOT, once it commences its own rulemaking to adopt the 2016 Non-Rail Vehicle Guidelines as enforceable accessibility standards. Regulated entities will not be required to comply with the 2016 Non-Rail Vehicle Guidelines until DOT completes its rulemaking efforts.