37.77 Purchase or lease of new non-rail vehicles by public entities
operating a demand responsive system for the general public.
(a) Except as provided in this section, a public entity operating a demand
responsive system for the general public 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) If the system, when viewed in its entirety, provides a level of service
to individuals with disabilities, including individuals who use wheelchairs,
equivalent to the level of service it provides to individuals without disabilities,
it may purchase new vehicles that are not readily accessible to and usable
by individuals with disabilities.
Section 224 of the ADA requires that a public entity operating a demand responsive
system purchase or lease accessible new vehicles, for which a solicitation
is made after August 25, 1990, unless the system, when viewed in its entirety,
provides a level of service to individuals with disabilities, including individuals
who use wheelchairs, equivalent to the level of service provided to individuals
without disabilities. This section is the same as the October 4, 2020
final rule which promulgated the immediately effective acquisition requirements
of the ADA.
(c) For purposes of this section, a demand responsive system, when viewed
in its entirety, shall be deemed to provide equivalent service if the service
available to individuals with disabilities, including individuals who use
wheelchairs, is provided in the most integrated setting appropriate to the
needs of the individual and is equivalent to the service provided other individuals
with respect to the following service characteristics:
- Response time;
- Geographic area of service;
- Hours and days of service;
- Restrictions or priorities based on trip purpose;
- Availability of information and reservationscapability; and
- Any constraints on capacity or service availability.
The Department has been asked to clarify what "accessible when
viewed in its entirety" means in the context of a demand responsive system
being allowed to purchase an inaccessible vehicle. First, it is important
to note that this exception applies only to demand responsive systems (and
not fixed route systems). The term "equivalent service" was discussed
during the passage of the ADA. Material from the legislative history
indicates that "when viewed in its entirety/equivalent service" means that
"when all aspects of a transportation system are analyzed, equal opportunities
for each individual with a disability to use the transportation system must
exist. (H. Rept. 101-184, Pt.2, at 95; S. Rept. 101-116 at 54). For
example, both reports said that "the time delay between a phone call to access
the demand responsive system and pick up the individual is not greater because
the individual needs a lift or ramp or other accommodation to access the
(d) A public entity receiving UMTA funds under section 18 or a public entity
in a small urbanized area which receives UMTA funds under Section 9 from
a state administering agency rather than directly from UMTA, which determines
that its service to individuals with disabilities is equivalent to that provided
other persons shall, before any procurement of an inaccessible vehicle, file
with the appropriate state program office a certificate that it provides
equivalent service meeting the standards of paragraph (c) of this section.
Public entities operating demand responsive service receiving funds under
any other section of the UMT Act shall file the certificate with the appropriate
UMTA regional office. A public entity which does not receive UMTA funds shall
make such a certificate and retain it in its files, subject to inspection
on request of UMTA. All certificates under this paragraph may be made
and filed in connection with a particular procurement or in advance of a
procurement; however, no certificate shall be valid for more than one year.
A copy of the required certificate is found in Appendix C to this Part.
Consistent with this, the Department has specified certain service criteria
that are to be used when determining if the service is equivalent.
As in previous rulemakings on this provision, the standards (which include
service area, response time, fares, hours and days of service, trip purpose
restrictions, information and reservations capability, and other capacity
constraints) are not absolute standards. They do not say, for example,
that a person with a disability must be picked up in a specified number of
hours. The requirement is that there must be equivalent service for
all passengers, whether or not they have a disability. If the system
provides service to persons without disabilities within four hours of a call
for service, then passengers with disabilities must be afforded the same
The Department has been asked specifically where an entity should
send its "equivalent level of service" certifications. We provide the
following: Equivalent level of service certifications should be submitted
to the state program office if you are a public entity receiving UMTA funds
through the state All other entities should submit their equivalent
level of service certifications to the UMTA regional office (listed in Appendix
B to this part). Certifications must be submitted before the acquisition
of the vehicles.
(e) The waiver mechanism set forth in 37.71(b)-(g) (unavailability of lifts)
of this Subpart shall also be available to public entities operating a demand
responsive system for the general public.
Paragraph (e) of this section authorizes a waiver for the unavailability
of lifts. Since demand responsive systems need not purchase accessible
vehicles if they can certify equivalent service, the Department has been
asked what this provision is doing in this section.
Paragraph (e) applies in the case in which an entity operates a demand responsive
system, which is not equivalent, and the entity cannot find accessible vehicles
to acquire. In this case, the waiver provisions applicable to a fixed
route entity purchasing or leasing inaccessible new vehicles applies to the
demand responsive operator as well.