37.71  Purchase or lease of new non-rail vehicles by public entities  operating fixed route systems.

(a) Except as provided elsewhere in this section, each public entity operating a fixed route system making a solicitation after August 25, 1990, to purchase or lease a new bus or other new vehicle for use on the system, shall ensure that the vehicle is readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs.

(b) A public entity may purchase or lease a new bus that is not readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs, if it applies for, and the UMTA Administrator grants, a waiver as provided for in this section.

(c) Before submitting a request for such a waiver, the public entity shall hold at least one public hearing concerning the proposed request.

(d) The UMTA Administrator may grant a request for such a waiver if the public entity demonstrates to the UMTA Administrator's satisfaction that --
  1. The initial solicitation for new buses made by the public entity specified that all new buses were to be lift-equipped and were to be otherwise accessible to and usable by individuals with disabilities;
  2. Hydraulic, electromechanical, or other lifts for such new buses could not be provided by any qualified lift manufacturer to the manufacturer of such new buses in sufficient time to comply with the solicitation; and
  3. Any further delay in purchasing new buses equipped with such necessary lifts would significantly impair transportation services in the community served by the public entity.
(e) The public entity shall include with its waiver request a copy of the initial solicitation and written documentation from the bus manufacturer of its good faith efforts to obtain lifts in time to comply with the solicitation, and a full justification for the assertion that the delay in bus procurement needed to obtain a lift-equipped bus would significantly impair transportation services in the community.  This documentation shall include a specific date at which the lifts could be supplied, copies of advertisements in trade publications and inquiries to trade associations seeking lifts, and documentation of the public hearing.

(f) Any waiver granted by the UMTA Administrator under this section shall be subject to the following conditions:
  1. The waiver shall apply only to the particular bus delivery to which the waiver request pertains;
  2. The waiver shall include a termination date, which will be based on information concerning when lifts will become available for installation on the new buses the public entity is purchasing.  Buses delivered after this date, even though procured under a solicitation to which a waiver applied, shall be equipped with lifts;
  3. Any bus obtained subject to the waiver shall be capable of accepting a lift, and the public entity shall install a lift as soon as soon as one becomes available;
  4. Such other terms and conditions as the UMTA Administrator may impose.
  1. When the UMTA Administrator grants a waiver under this section, he/she shall promptly notify the appropriate committees of Congress.
  2. If the UMTA Administrator has reasonable cause to believe that a public entity fraudulently applied for a waiver under this section, the UMTA Administrator shall:
(i) Cancel the waiver if it is still in effect; and
(ii) Take other appropriate action.
This section sets out the basic acquisition requirements for a public entity purchasing a new vehicle.  Generally, the section requires any public entity who purchases or leases a new vehicle to acquire an accessible vehicle.  There is a waiver provision if lifts are unavailable and these provisions track the conditions in the ADA.  One statutory condition, that the public entity has made a good faith effort to locate a qualified manufacturer to supply the lifts, presumes a direct relationship between the transit provider and the lift manufacturer.  In fact, it is the bus manufacturer, rather than the transit provider directly, who would have the task of looking for a supplier of lifts to meet the transit provider's specifications.  The task must still be performed, but the regulation does not require the transit provider to obtain actual information about available lifts.  Rather the bus manufacturer obtains the information and provides this assurance to the entity applying for the waiver, and the entity may rely on this representation. More specifically, the regulation requires that each waiver request must include a copy of the written solicitation (showing that it requested lift-equipped vehicles) and written responses from lift manufacturers to the vehicle manufacturer documenting their inability to provide the lifts.  The information from the lift manufacturer must also include when the lifts will be available.

In addition, the waiver request must include copies of advertisements in trade publications and inquiries to trade associations, seeking lifts for the buses.  The public entity also must include a full justification for the assertion that a delay in the bus procurement sufficient to obtain a lift-equipped bus would significantly impair transportation services in the community.  There is no length of time that would be a per se delay constituting a "significant impairment".  It will be more difficult to obtain a waiver if a relatively short rather than relatively lengthy delay is involved.  A showing of timetables, absent a showing of significant impairment of actual transit services, would not form a basis for granting a waiver. Any waiver granted by the Department under this provision will be a conditional waiver.  The conditions are intended to ensure that the waiver provision does not create a loophole in the accessible vehicle acquisition requirement that Congress intended to impose.  The ADA requires a waiver to be limited in duration and the rule requires a termination date to be included.  The date will be established on the basis of the information the Department receives concerning the availability of lifts, in the waiver request and elsewhere.  In addition, so that a waiver does not become open-ended, it will apply only to a particular procurement. If a transit agency wants a waiver for a subsequent delivery of buses in the procurement, or another procurement entirely, it will have to make a separate waiver request.

For example, if a particular order of buses is delivered over a period of time, each delivery would be the potential subject of a waiver request.  First, the entity would request a waiver for the first shipment of buses.  If all of the conditions are met, the waiver would be granted, with a date specified to coincide with the due date of the lifts.  When the lifts become available those buses would have to be retrofitted with the lifts.  A subsequent delivery of buses -- on the same order -- would have to receive its own waiver, subject to the same conditions and specifications of the first waiver.  The purpose of the waiver, as the Department construes it, is to address a situation in which (because of a sudden increase in the number of lift-equipped buses requested) lift manufacturers are unable to produce enough lifts to meet the demand in a timely fashion.