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.

37.9  Standards for accessible transportation facilities.

This section makes clear that, in order to meet accessibility requirements of this rule, vehicles must comply with Appendix A to Part 37, which incorporates the Access Board facility guidelines.
(a) For purposes of this Part, a transportation facility 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 Appendix A to this Part.

(b) Facility alterations begun before January 26, 1992, in a good faith effort to make a facility accessible to individuals with disabilities may be used to meet the key station requirements set forth in 37.47 and 37.51 of this Part, even if these alterations are not consistent with the standards set forth in Appendix A to this Part, if the modifications complied with the Uniform Federal Accessibility Standard (UFAS) or ANSI A117.1(1980)  (American National Standards Specification for Making Buildings and Facilities Accessible to and Usable by, the Physically Handicapped).  This paragraph applies only to alterations of individual elements and spaces and only to the extent that provisions covering those elements or spaces are contained in UFAS or ANSI A117.1, as applicable.
Paragraph (b) of §37.9 provides that, under certain circumstances, existing accessibility modifications to key station facilities do not need to be modified further in order to conform to Appendix A.  This is true even if the standards under which the facility was modified differ from the Access Board guidelines or provide a lesser standard of accessibility.

To qualify for this "grandfathering," alterations must have been begun before January 26, 1992.  As in other facility sections of the rule, an alteration is deemed to begin with the issuance of a notice to proceed or work order.  The existing modifications must conform to ANSI A-117.1, Specifications for Making Buildings and Facilities Accessible to and Usable by the Physically Handicapped 1980), or the Uniform Federal Accessibility Standard. (UFAS).

For example, if an entity used a Federal grant or loan or money to make changes to a building, it would already have had to comply with the Uniform Federal Accessibility Standards.  Likewise, if a private entity, acting without any federal money in the project, may have complied with the ANSI A117.1 standard.  So long as the work was done in conformity with the standard that was in effect when the work was done, the alteration will be considered accessible.

However, because one modification was made to a facility under one of these standards, the entity still has a responsibility to make other modifications needed to comply with applicable accessibility requirements. For example, if an entity has made some modifications to a key station according to one of these older standards, but the modifications do not make the key station entirely accessible as this rule requires, then additional modifications would have to be made according to the standards of Appendix A.  Suppose this entity has put an elevator into the station to make it accessible to individuals who use wheelchairs.  If the elevator does not fully meet Appendix A standards, but met the applicable ANSI standard when it was installed, it would not need further modifications now.  But if it had not already done so, the entity would have to install a tactile strip along the platform edge in order to make the key station fully accessible as provided in this rule.  The tactile strip would have to meet Appendix A requirements.

The rule specifically provides that "grandfathering" applies only to alterations of individual elements and spaces and only to the extent that provisions covering those elements or spaces are found in UFAS or AHSI A117.1.  For example, alterations to the telephones in a key station may have been carried out in order to lower them to meet the requirements of UFAS, but telecommunications devices for the deaf (TDDs) were not installed.  (Neither UFAS nor the ANSI standard include requirements concerning TDDs).  However, because Appendix A does contain TDD requirements, the key station must now be altered in accordance with the standards for TDDs.  Similarly, earlier alteration of an enture station in accordance with UFAS or the ANSI standard would not relieve an entity from compliance with any applicable provision concerning the gap between the platform between the platform and the vehicle in a key station, because neither of these two standards addresses the interface between vehicle and platform.
(c) Public entities shall ensure the construction of new bus stop pads are in compliance with 10.2.1.(1) of Appendix A to this Part, to the extent construction specifications are within their control.
New paragraph (c) of this section clarifies a provision of the Access Board's standards concerning the construction of bus stop pads at bus stops.  The final Access Board standard (found at section 10.2.1(1) of Appendix A to Part 37) has been rewritten slightly to clear up confusion about the perceived necessary construction of a bus stop pad.  Section 10.2.1(1) does not require that anyone build a bus stop pad; it does specify what a bus stop pad must look like, if it is constructed.  The further clarifying language in §37.9(c) explains that public entities must exert control over the construction of bus stop pads if they have the ability to do so.  The Access Board, as well as DOT, recognize that most physical improvements related to bus stops are out of the control of the transit provider.  Paragraph (c) of §37.9 merely notes that where a transit provider does have control over the construction, it must exercise that control to ensure that the pad meets these specifications.

One further clarification concerning the implication of this provision deals with a bus loading island at which buses pull up on both sides of the island.  It would be possible to read the bus pad specification to require the island to be a minimum of 84 inches wide (two widths of a bus stop pad), so that a lift could be deployed from buses on both sides of the island at the same time.  A double-wide bus pad, however, is likely to exceed available space in most instances.

Where there is space, of course, building a double-wide pad is one acceptable option under this rule.  However, the combination of a pad of normal width and standard operational practices may also suffice.  (Such practices could be offered as an equivalent facilitation.) For example, buses on either side of the island could stop at staggered locations (i.e., the bus on the left side could stop several feet ahead of the bus on the right side), so that even when buses were on both sides of the island at once, their lifts could be deployed without conflict.  Where it is possible, building the pad a little longer than normal size could facilitate such an approach.  In a situation where staggered stop areas are not feasible, an operational practice of having one bus wait until the other's lift cycle had been completed could do the job.  Finally, the specification does not require that a pad be built at all.  If there is nothing that can be done to permit lift deployment on both sides of an island, the buses can stop on the street, or some other location, so long as the lift is deployable.

(d)    (1) For purposes of implementing the equivalent facilitation provision in section 2.2 of appendix A to this part, the following parties may submit to the Administrator of the applicable operating administration a request for a determination of equivalent facilitation:

(A)     (i)A public or private entity that provides transportation facilities subject to the provisions of subpart C this part, or other appropriate party with the concurrence of the Administrator;

(ii) With respect to airport facilities, an entity that is an airport operator subject to the requirements of 49 CFR part 27 or regulations implementing the Americans with Disabilities Act, an air carrier subject to the requirements of 14 CFR part 382, or other appropriate party with the concurrence of the Administrator.

(B) The manufacturer of a product or accessibility feature to be used in the facility of 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 Appendix A to Part 37 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 appendix A to this part; 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 facilities (including an airport operator), or a request by an air carrier with respect to airport facilities, 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 manufacturer or a private entity other than an air carrier, the manufacturer or private entity 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 transportation facilities, and pertain only to the specific situation concerning which the determination is made. Entities shall not cite these determinations as indicating that a products or methods 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.
Like §37.7, this section contains a provision allowing an entity to request approval for providing accessibility through an equivalent facilitation.