37.151 Waiver for undue financial burden.

If compliance with the service criteria of 37.131 of this part creates an undue financial burden, an entity may request a waiver from all or some of the provisions if the entity has complied with the public participation requirements in 37.137 of this Part and if the following conditions apply;

(a) At the time of submission of the initial plan on January 26, 1992,
  1. The entity determines that it cannot meet all of the service criteria by January 26, 1997; or
  2. The entity determines that it cannot make measured progress toward compliance in any year before full compliance is required.  For purposes of this part, measured progress means implementing milestones as scheduled, such as incorporating an additional paratransit service criterion or improving an aspect of a specific service criterion.
(b) At the time of its annual plan update submission, if the entity believes that circumstances have changed since its last submission, and it is no longer able to comply by January 26, 1997, or make measured progress in any year before 1997, as described in paragraph (a)(2) of this section.  
The Department has adopted a five-year phase-in for paratransit service.  Under this scheme, each entity required to provide paratransit service will be able to design a phase-in of its service specifically geared to local circumstances.  While all jurisdictions will not receive approval for plans with a five year phase-in, each entity will be able to request what it needs based on local circumstances.  Generally, the section allows an entity to request a waiver at any time it determines that it will not be able to meet a five-year phase-in or make measured progress toward its full compliance date specified in its original plan.

A waiver for undue financial burden should be requested if one of the following circumstances applies.  First, when the entity submits its first plan on January 26, 1992, if the entity knows it will not be able to reach full compliance within five years, or if the entity cannot make measured progress the first year it may submit a waiver request.  The entity also should apply for a waiver, if, during plan implementation, there are changed circumstances which make it unlikely that compliance will be possible.

The concept of measured progress should be given its plain meaning.  It is not acceptable to submit a plan which shows significant progress in implementing a plan in years four and five, but no progress in years one and two.  Similarly, the progress must be susceptible to objective verification.  An entity cannot merely "work toward" developing a particular aspect of a plan.

The Department intends that undue burden waiver requests will be given close scrutiny, and waiver will not be granted highly.  In reviewing requests, however, as the legislative history indicates, UMTA will look at the individual financial constraints within which each public entity operates its fixed route system.

"Any determination of undue financial burden cannot have assumed the collection of additional revenues, such as those received through increases in local taxes or legislative appropriations, which would not have otherwise been made available to the fixed route operator." (H.Rept. 101-485, Pt. 1, at 31)