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

B. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) requires Federal agencies to analyze the impact of regulatory actions on small entities, unless an agency certifies that the rule will not have a significant impact on a substantial number of small entities. See 5 U.S.C. 604, 605 (b). Based on the results from the Final RA, the Access Board does not believe that the 2016 Non-Rail Vehicle Guidelines will have a significant impact on a substantial number of small entities. Nonetheless, to promote better understanding of the 2016 Non-Rail Vehicle Guidelines as applied to small entities operating in transportation-related business sectors, the Access Board provides below a final regulatory flexibility analysis consistent with section 604 of the RFA.

Summary of the need for, and objectives of, the 2016 Non-Rail Vehicle Guidelines. The Americans with Disabilities Act (ADA) mandates that the Access Board establish accessibility guidelines for transportation vehicles that are acquired or remanufactured by entities covered by the ADA. See 42 U.S.C. 12204, 12149(b). The Access Board’s guidelines for transportation vehicles were initially promulgated in 1991, and thereafter amended in 1998 to include accessibility requirements for OTRBs. Given the passage of nearly two decades, these existing guidelines are in need of a “refresh” for two primary reasons: to incorporate new accessibility-related technologies, such as automated announcement systems and level boarding bus systems, and ensure that the transportation vehicle guidelines are consistent with the agency’s other guidelines and standards issued since 1998.

Most of the revisions in the 2016 Non-Rail Vehicle Guidelines are editorial only. These revised guidelines use a new organizational format that is modelled after the Access Board’s current guidelines for buildings and facilities that were issued in 2004. Additionally, as part of its efforts to update the existing guidelines, the Board has also endeavored to write the final rule in terms that make its requirements simpler and easier to understand. There are, however, five areas in which technical requirements in the 2016 Non-Rail Vehicle Guidelines have substantively changed relative to the existing guidelines. One of these requirements (i.e., automated stop and route announcement systems) only applies to large transit entities and, therefore, does not impact any small entities. The other four requirements—identification of wheelchair spaces and accessible doorways (with the International Symbol of Accessibility) and priority seats (with signs), exterior destination or route signage, public address systems, and stop request systems—while applicable to all non-rail vehicles, are only “new” for OTRBs. (Such requirements have been in effect for buses and vans since 1991.) The revisions in the 2016 Non-Rail Vehicle Guidelines will help ensure that buses, vans, and OTRBs are readily accessible to, and usable by, individuals with disabilities. Compliance with the 2016 Non-Rail Vehicle Guidelines is not required until the Department of Transportation (DOT) adopts these revised guidelines as enforceable accessibility standards for ADA-covered buses, OTRBs, and vans.

Summaries of significant issues raised by public comments in response to the initial regulatory flexibility analysis and discussion of regulatory revisions made as a result of such comments. Commenters did not raise any issues related to the initial regulatory flexibility analysis presented in the 2010 NPRM.

Estimates of the number and type of small entities to which the 2016 Non-Rail Vehicle Guidelines will apply. Small governmental jurisdictions (i.e., state or local government units with a population of less than 50,000) and small businesses (i.e., small private entities that meet the size standards established by the Small Business Administration (SBA)) will be affected by the 2016 Non-Rail Vehicle Guidelines only to the extent they are subject to DOT’s ADA regulations covering transportation services for individuals with disabilities (49 CFR Part 37) , which, in turn, must be “consistent with” the Access Board’s accessibility guidelines.

The Final RA also provides a small business analysis that evaluates the number of small entities potentially affected by the 2016 Non-Rail Vehicle Guidelines, and the likely economic impact on such entities. See Final RA, Sections 4.3 & 8. In sum, the Final RA’s small business analysis finds as follows. First, the 2016 Non-Rail Vehicle Guidelines are only expected to have an economic impact on small (private) firms that operate OTRBs in fixed route service. No small governmental jurisdictions are expected to incur compliance costs under the 2016 Non-Rail Vehicle Guidelines given that the automated announcement systems requirement only applies to large transit entities (i.e., transit agencies operating 100 or more buses in annual maximum service in fixed route bus modes). According to the current (2014) National Transit Database, none of transit entities that report operating 100 or more buses in annual maximum service in fixed route bus modes have service areas or urbanized area (UZA) populations under 50,000.²²

Second, the Final RA’s small business analysis evaluates the number of small businesses that potentially may be affected by the 2016 Non-Rail Vehicle Guidelines. Small firms operate OTRBs for a variety of purposes, but predominant uses include: provision of fixed route passenger service within or among cities, passenger charter services, airport shuttle services, sightseeing tours, and packaged tours. While these services do not squarely align with any single business sector the under the 2012 North American Industry Classification System (NAICS), they best “map” to the following four 6-digit NAICS codes: 485113 (Bus and Other Motor Transit Systems); 485210 (Interurban and Rural Bus Transportation); 485510 (Charter Bus Industry); and 487110 (Scenic and Sightseeing Transportation, Land).²³ Data were compiled from the 2012 U.S. Economic Census (released in June 2015) to determine the number of small OTRB firms within each of these four transportation-related NAICS codes. The Economic Census data show that firms within these four transit/transportation/charter/sightseeing industry sectors are, based on SBA-defined size standards, overwhelmingly small businesses. The number and percentage of small businesses in each of the four NAICS codes are provided below in Table 6.

Table 6 - Number and Percentage of Small Businesses in Four OTRB-Related Business Sectors

It bears noting, however, that firm data in Table 6 above likely overestimates the number of small firms affected by the 2016 Non-Rail Vehicle Guidelines. This is due to the fact that the four listed NAICS codes encompass transportation, charter, and sightseeing services provided by vehicles other than OTRBs, such as trolley buses, transit buses, or historic rail cars. In other words, these NAICS codes are not restricted to transportation services provided exclusively by OTRBs. There are no NAICS codes, however, directed solely to OTRB-provided transportation or other services. Accordingly, despite their limitations, these four NAICS codes nonetheless provide the best available framework (given current data limitations) for estimating the number of small firms that may operate OTRBs and, thereby, potentially incur compliance costs under the 2016 Non-Rail Vehicle Guidelines.

Description of the projected reporting, recordkeeping and other compliance requirements of the 2016 Non-Rail Vehicle Guidelines. As noted below in Section V.E., discussing the Paperwork Reduction Act, the 2016 Non-Rail Vehicle Guidelines impose no reporting or record-keeping requirements on any entities, regardless of size. The Access Board acknowledges that there may be other minor, indirect administrative costs incurred by regulated entities—including small businesses—as a result of the 2016 Non-Rail Vehicle Guidelines, including such tasks as becoming familiar with the 2016 Non-Rail Vehicle Guidelines, or keeping track of the operational status of onboard equipment for automated announcement systems. However, such compliance costs are expected to be neither significant nor disproportionately borne by small entities.

Description of the steps taken by the Access Board to minimize the economic impact on small entities consistent with the stated objectives of the ADA. In the 2007 Draft Revised Guidelines, the Access Board considered requiring all public transit agencies to provide automated announcement systems on large fixed route buses, regardless of the size of the agency. Several commenters, including the American Public Transit Association, expressed concern that the cost of providing such announcement systems would be prohibitive for small transit agencies. Consequently, in the NPRM, the Access Board proposed to limit application of the automated announcement system requirement to large transit agencies. This limitation, as noted above, has the practical effect of excluding all small public transit agencies from the automated announcement systems requirement.