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:
(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.
- 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;
- A nationwide search for accessible vehicles, involving specific inquiries
to used vehicle dealers and other transit providers; and
- Advertising in trade publications and contacting trade associations.
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,
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