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,
(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 entity determines that it cannot meet all of the service criteria
by January 26, 1997; or
- 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.
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
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
"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