37.73  Purchase or lease of used non-rail vehicles by public entities operating a fixed route system.

(a) Except as provided elsewhere in this section, each public entity operating a fixed route system purchasing or leasing, after August 25, 1990, a used bus or other used 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 used vehicle for use on its fixed route system that is not readily accessible to and usable by individuals with disabilities if, after making demonstrated good faith efforts to obtain an accessible vehicle, it is unable to do so.

(c) Good faith efforts shall include at least the following steps:
  1. An initial solicitation for used vehicles specifying that all used vehicles are to be lift-equipped and otherwise accessible to and usable by individuals with disabilities, or, if an initial solicitation is not used, a documented communication so stating;
  2. A nationwide search for accessible vehicles, involving specific inquiries to used vehicle dealers and other transit providers; and
  3. Advertising in trade publications and contacting trade associations.
(d) Each public entity purchasing or leasing used vehicles that are not readily accessible to and usable by individuals with disabilities shall retain documentation of the specific good faith efforts it made for three years from the date the vehicles were purchased.  These records shall be made available, on request, to the UMTA Administrator and the public.
The basic rule is that an acquisition of a used vehicle would have to be for an accessible vehicle.

There is an exception, however, for situations in which the transit provider makes a good faith effort to obtain accessible used vehicles but does not succeed in finding them.  The ADA requires transit agencies to purchase accessible used vehicles, providing a "demonstrated good faith efforts" exception to the requirement.  The reports of the Senate Committee on Labor and Human Resources and the House Committee on Education and Labor offered the following guidance on what "good faith efforts" involve:

The phrase "demonstrated good faith efforts" is intended to require a nationwide search and not a search limited to a particular region.  For instance, it would not be enough for a transit operator to contact only the manufacturer where the transit authority usually does business to see if there are accessible used buses.  It involves the transit authority advertising in a trade magazine, i.e., Passenger Transport, or contacting the transit trade association, American Public Transit Association (APTA), to determine whether accessible used vehicles are available. It is the Committee's expectation that as the number of buses with lifts increases, the burden on the transit authority to demonstrate its inability to purchase accessible vehicles despite good faith efforts will become more and more difficult to satisfy. S.Rept.  101-116 at 49; H.Rept. 101-485 at 90.

Consistent with this guidance, this section requires that good faith efforts include specifying accessible vehicles in bid solicitations.  The section also requires that the entity retain for three years documentation of that effort, and that the information be available to UMTA and the public.

It does not meet the good faith efforts requirement to purchase inaccessible, rather than accessible, used buses, just because the former are less expensive.  Particularly if the difference is a difference attributable to the presence of a lift.  There may be situations in which good faith efforts involve buying fewer accessible buses in preference to more inaccessible buses.

The public participation requirements involved in the development of the paratransit plans for all fixed route operators requires an ongoing relationship, including extensive outreach, to the community likely to be using its accessible service.  We believe that it will be difficult to comply with the public participation requirements and not involve the affected community in the decisions concerning the purchase or lease of used accessible vehicles.

There is an exception to these requirements for donated vehicles.  Not all "zero dollar" transfers are donations, however.  The legislative history to this provision provides insight.

It is not the Committee's intent to make the vehicle accessibility provisions of this title applicable to vehicles donated to a public entity.  The Committee understands that it is not usual to donate vehicles to a public entity.  However, there could be instances where someone could conceivably donate a bus to a public transit operator in a will.  In such a case, the transit operators should not be prevented from accepting a gift.

The Committee does not intend that this limited exemption for donated vehicles be used to circumvent the intent of the ADA.  For example, a local transit authority could not arrange to be the recipient of donated inacessible buses.  This would be a violation of the ADA. S.Rpt. 101-116, at 46; H.Rpt 101-486, at 87.

Entities interested in accepting donated vehicles must submit a request to UMTA to verify that the transaction is a donation.

There is one situation, in which a vehicle has prior use is not treated as a used vehicle.  If a vehicle has been remanufactured, and it is within the period of the extension of its useful life, it is not viewed as a used vehicle (see H. Rept. 101-485, Pt 1 at 27).  During this period, such a vehicle may be acquired by another entity without going through the good faith efforts process.  This is because, at the time of its remanufacture, the bus would have been made as accessible if feasible.  When the vehicle has completed its extended useful life (e.g., the beginning of year six when its useful life has extended five years), it becomes subject to used bus requirements.