37.153 UMTA waiver determination.

(a) The Administrator will determine whether to grant a waiver for undue financial burden on a case-by-case basis, after considering the factors identified in 37.155 of this part and the information accompanying the request.  If necessary, the Administrator will return the application with a request for additional information.

(b) Any waiver granted will be for a limited and specified period of time.

(c) If the Administrator grants the applicant a waiver, the Administrator will do one of the following:
  1. Require the public entity to provide complementary paratransit to the extent it can do so without incurring an undue financial burden.  The entity shall make changes in its plan that the Administrator determines are appropriate to maximize the complementary paratransit service that is provided to ADA paratransit eligible individuals.  When making changes to its plan, the entity shall use the public participation process specified for plan development and shall consider first a reduction in number of trips provided to each ADA paratransit eligible person per month, while attempting to meet all other service criteria.
  2. Require the pubic entity to provide basic complementary paratransit services to all ADA paratransit eligible individuals, even if doing so would cause the public entity to incur an undue financial burden.  Basic complementary paratransit service shall include at least complementary paratransit service in corridors defined as provided in 37.131(a) along the public entity's key routes during core service hours.
  3. (i) For purposes of this section, key routes are defined as routes along which there is service at least hourly throughout the day.
    (ii) For purposes of this section, core service hours encompass at least peak periods, as these periods are defined locally for fixed route service, consistent with industry practice.
  4. If the Administrator determines that the public entity will incur an undue financial burden as the result of providing basic complementary paratransit service, such that it is infeasible for the entity to provide basic complementary paratransit service, the Administrator shall require the public entity to coordinate with other available providers of demand responsive service in the area served by the public entity to maximize the service to ADA paratransit eligible individuals to the maximum extent feasible.
If the UMTA Administrator grants a waiver for undue financial burden, the waiver will be for a specified period of time and the Administrator will determine what the entity must do to meet its responsibilities under the ADA, Each determination will involve a judgment of what is appropriate on a case-by-case basis.  Since each waiver will be granted based on individual circumstances, the Department does not deem it appropriate to specify a generally applicable duration for a waiver.  When a waiver is granted, the rule calls for entities to look first at limiting the number of trips provided to each individual as a means of providing service that does not create an undue burden.
This capacity constraint, unlike manipulations of other service criteria, will not result in a degradation of the quality of service.  An entity intending to submit an undue burden waiver request should take this approach into account in its planning process.
It should be noted that requiring an entity to provide paratransit service at least during core hours along key routes is one option that the Administrator has available in making a decision about the service to be provided.  This requirement stems from the statutory provision that the Administrator can require the entity to provide a some minimum level of service, even if to do so would be an undue financial burden.  Certainly part of a request for a waiver could be a locally endorsed alternative to this description of basic service.
The rule states explicitly the Administrator's discretion to return the application for more information if necessary.