Material shown in italics is from the preamble of the of the regulation and
is presented for clarification only.
This section contains amendments from November 30, 2020 and May 21, 1996.
This section makes clear that, in order to meet accessibility requirements of this rule, vehicles must comply with Access Board standards, incorporated in DOT rules as 49 CFR Part 38.
(a) For purposes of this Part, a vehicle shall be considered to be readily accessible
to and usable by individuals with disabilities if it meets the requirements of
this Part and the standards set forth in Part 38 of this title.
(b)(1) For purposes of implementing the equivalent facilitation provision in @ 38.2 of this subtitle, the following parties may submit to the Administrator of the applicable operating administration a request for a determination of equivalent facilitation:
(i) A public or private entity that provides transportation services and is subject to the provisions of subpart D or subpart E this part; or
(ii) The manufacturer of a vehicle or a vehicle component or subsystem to be used by such entity to comply with this part.
(2) The requesting party shall provide the following information with its request:
(i) Entity name, address, contact person and telephone;
(ii) Specific provision of part 38 of this title concerning which the entity is seeking a determination of equivalent facilitation;
(iii) [Reserved]
(iv) Alternative method of compliance, with demonstration of how the alternative meets or exceeds the level of accessibility or usability of the vehicle provided in part 38 of this subtitle; and
(v) Documentation of the public participation used in developing an alternative method of compliance.
(3) In the case of a request by a public entity that provides transportation services subject to the provisions of subpart D of this part, the required public participation shall include the following:
(i) The entity shall contact individuals with disabilities and groups representing them in the community. Consultation with these individuals and groups shall take place at all stages of the development of the request for equivalent facilitation. All documents and other information concerning the request shall be available, upon request, to members of the public.
(ii) The entity shall make its proposed request available for public comment before the request is made final or transmitted to DOT. In making the request available for public review, the entity shall ensure that it is available, upon request, in accessible formats.
(iii) The entity shall sponsor at least one public hearing on the request and shall provide adequate notice of the hearing, including advertisement in appropriate media, such as newspapers of general and special interest circulation and radio announcements.
(4) In the case of a request by a private entity that provides transportation services subject to the provisions of subpart E of this part or a manufacturer, the private entity or manufacturer shall consult, in person, in writing, or by other appropriate means, with representatives of national and local organizations representing people with those disabilities who would be affected by the request.
(5) A determination of compliance will be made by the Administrator of the concerned operating administration on a case-by-case basis, with the concurrence of the Assistant Secretary for Policy and International Affairs.
6) Determinations of equivalent facilitation are made only with respect to vehicles or vehicle components used in the provision of transportation services covered by subpart D or subpart E of this part, and pertain only to the specific situation concerning which the determination is made. Entities shall not cite these determinations as indicating that a product or method constitute equivalent facilitations in situations other than those to which the determinations specifically pertain. Entities shall not claim that a determination of equivalent facilitation indicates approval or endorsement of any product or method by the Federal government, the Department of Transportation, or any of its operating administrations.
Paragraph (b) of §37.7 spells out a procedure by which an entity (public or private) can deviate from provisions of Part 38 with respect to vehicles. The entity can make a case to the Administrator that it is unable to comply with a particular portion of Part 38, as written, for specified reasons, and that it is providing comparable compliance compliance by some alternative method. The entity would have to describe how its alternative mode of compliance would meet or exceed the level of access to or usability of the vehicle that compliance with Part 38 would otherwise provide.
It should be noted that equivalent facilitation does not provide a means to get a waiver of accessibility requirements. Rather, it is a way in which comparable (not a lesser degree of) accessibility can be provided by other means. The entity must consult with the public through some means of public participation in devising its alternative form of compliance, and the public input must be reflected in the submission to the Administrator (or the Federal Railroad Administrator in appropriate cases, such as a request concerning Amtrak). The Administrator will make a case-by-case decision about whether compliance with Part 38 was achievable and, if not, whether the proffered alternative complies with the equivalent facilitation standard. DOT intends to consult with the Access Board in making these determinations.
This equivalent facilitation provision can apply to buses or other motor vehicles as well as to rail cars and vehicles. An example of what could be an equivalent facilitation would concern rail cars which would leave too wide a horizontal gap between the door and the platform. If the operator used a combination of bridgeplates and personnel to bridge the gap, it might be regarded as an equivalent facilitation in appropriate circumstances.
(c) Over-the-road buses acquired by public entities (or by a contractor to a public entity as provided in 37.23 of this part) shall comply with 38.23 and subpart G of part 38 of this title.
Section 37.7(c) clarifies which specifications must be complied with for over-the-road buses purchased by public entities (under subpart D of part 37) or private entities standing in the shoes of the public entity (as described in §37.23 of part 37). This section is necessary to make clear that over-the-road coaches must be accessible, when they are purchased by or in furtherance of a contract with a public entity. While the October 4, 2020 rule specified that over-the-road coaches must be accessible under these circumstances, we had not previously specified what constitutes accessibility.
Accordingly, this paragraph specifies that an over-the-road bus must have a lift which meets the performance requirements of a regular bus lift (see §38.23) and must meet the interim accessibility features specified for all over-the-road buses in Part 38, Subpart G.