the requirements of section 223 of the Americans with Disabilities Act (Pub. L. 101-336), with respect to paratransit as a complement to fixed route service.

[55 FR 40764, Oct. 4, 1990]

§ 27.99 [Reserved]

8 27.101 Technical exemptions.

(a) A recipient may request a technical exemption from any provision of this subpart. Such a request shall be made in writing, to the Administrator of the Urban Mass Transportation Administration, through the appropriate UMTA Regional Administrator. The request may be made in conjunction with the submission of the recipient's program under § 27.85 of this subpart.

(b) The Administrator may grant the request if

(1) The recipient has demonstrated that special local circumstances, not contemplated or taken into account in the rulemaking establishing this subpart, make it unduly burdensome or unreasonable for the recipient to comply with a generally applicable requirement; and

(2) The recipient has agreed to take action which the Administrator determines will result in substantial compliance with this subpart despite the grant of a technical exemption from a particular provision of this subpart.

(c) The Administrator may grant, partially grant, or deny any request for a technical exemption. The Administrator may also place any reasonable conditions upon the grant of a technical exemption. The Administrator's actions are subject to the concurrence of the Assistant Secretary for Policy and International Affairs.

§ 27.103 Alternate procedures for recipients in States administering the section 5, 9, and 9A programs.

(a) If a state has elected to administer UMTA's section 5, 9, and 9A programs for UMTA, the recipient shall submit the materials required by §§ 27.85, 27.89(c), 27.91(f), and 27.93(c) of this subpart to the designated state agency rather than to UMTA. The designated state agency shall act for UMTA to review and approve, as required, the materials submitted by the recipients. The time limits and procedures imposed on UMTA in these provisions shall apply to the designated state agencies.

(b) After the designated state agency has approved the recipient's program under § 27.85, it shall certify to UMTA that the recipient is in compliance with this subpart. This certification is due to UMTA within 30 days of the approval of the program and it shall state whether the recipient has entered into a compact under § 27.93.

APPENDIX TO SUBPART E

The material in this appendix describes the Department's interpretation of the provisions of this regulation. (For additional information concerning these provisions, please refer to the preamble published with this regulation in the FEDERAL REGISTER.) This material may be supplemented or modified, in the future, by additional guidance from the Department, including UMTA, as questions arise during the implementation of the regulation.

Section 27.81 Program requirement.

This section directs UMTA recipients who receive funds under sections 3, 5, 9, or 9A; serve the general public; and operate a bus system in an urbanized area to establish a program, consistent with this regulation's requirements, for providing transportation services to handicapped persons. Each of the qualifications of this requirement is intended and important.

Recipients receiving funds only under another section (e.g., section 8 planning funds; section 18 small urban and rural transportation program funds) do not need to create a program.

Recipients who do not provide federallyassisted transportation services at all (e.g., an MPO that receives section 9 funds but merely passes them through to a transit provider) are not required to establish a program. "Providing transportation services," in this context, is not limited to actually operating a fleet of the recipient's own vehicles with the recipient's own personnel. For example, private provider may operate federally-assisted service (e.g., as part of a private-sector participation initiative). The recipient would be providing transportation service for purposes of this section, and be responsible for ensuring that service to handicapped persons that fully meets regulatory requirements is provided, directly or through the private provider.

Only recipients providing transportation services to the general public (as distinct from providing services only to elderly or handicapped persons) are required to establish a program. Even though section 16(b)(2) funds are taken from section 3 appropriations, agencies receiving funds solely under this program are not covered by this section's requirements.

Recipients under other UMTA funding programs, if they serve only elderly and/or handicapped persons, are exempted from this requirement for the same reason. Also, recipients who do not provide transit services "by bus" (i.e., rail-only operators) are not covered by this requirement.

Section 27.91(a) creates a separate, simpler system through which section 18 recipients and other recipients in non-urbanized

areas (even though they receive some section 3,5,9, or 9A funds) will comply with the requirements of this subpart. That section, and not § 27.81, applies to recipients providing service only in areas of less than 50,000 population.

The recipient's program must provide for meeting the full performance level for services to handicapped persons within the phase-in period provided for by § 27.95. The program must include "milestones": statements of the progress a recipient will make each year toward the full performance level.

For example, a recipient planning to comply by making its buses accessible would set forth how many accessible buses it would have by the end of year one, year two, etc., and to what degree it would meet each of the various service criteria at each stage. Similar items would be presented for other needed tasks, such as driver training, structural improvements to facilities, or information services. In its review of recipients' programs, UMTA will consider whether the milestones are realistic and provide for an appropriately phased build-up to the full performance level.

These milestones are very important, and recipients should think them out very carefully. The milestones in a recipient's program, once they are approved by UMTA, became the benchmarks against which the recipient's compliance is evaluated during the phase-in period. That is, the milestones to which a recipient commits itself during the phase-in period, like the full performance level subsequently, are the levels of performance that the recipient must meet to be considered in compliance.

The recipient has to include other information in its submission, along with the program itself. Much of the required information is listed in § 27.85. Other material that should be submitted, if applicable, concerns the continuing public participation mechanism, the criteria and procedure for determining eligibility, and accessible bus system routing and scheduling.

Section 27.83 Public participation and coordination.

The requirements for this section apply only to those recipients which must submit a program, since the section mostly pertains to the public participation and coordination process involved with preparing and adopting a program. The requirements of this section are minimum requirements. Recipients may go beyond them (e.g., a comment period longer than 60 days).

Subparagraph (a)(1) requires recipients to consult, as early as possible in the planning process, with interested people and groups. The idea of early consultation is important. Handicapped persons and groups, transportation and social services agencies, state and local officials, and the Metropolitan Plan

ning Organization (MPO) should be regarded as partners in the planning process from the outset, not simply as commenters upon a proposed program that is already fully developed by the recipient.

The recipient's consultation should deal Iwith the entire spectrum of concerns involved in planning service for handicapped individuals. Subsection (a) (1) mentions specifically service needs, weaknesses or problems in present service or existing plans for service, and the types and characteristics of service to be provided under the recipient's program.

Some recipients may already have a public participation mechanism in place, such as an advisory committee. The recipient may use such an existing mechanism. However, the recipient should ensure that all relevant parties have the opportunity to be included in the consultation process, even if they have not regularly participated in the advisory committee. For example, a recipient may have an advisory committee with membership drawn from several, but not all, organizations concerned with disability issues in the area, but in which the MPO is not normally represented. The recipient could base its consultation required by this subparagraph on the advisory committee, being sure that members of the additional organizations of disabled persons, social service agencies, and the MPO also were consulted and had the opportunity to participate.

The last sentence of subparagraph (a)(1) provides that cost estimates, plans, working papers and other information pertaining to the recipient's program and service for handicapped persons must be made available to all interested individuals and groups. In order to participate constructively in the planning process, those parties with whom the recipient is working need to have access to the information available to and the thinking of members of the recipient's staff. Information relevant to service cannot be viewed as "classified" or withheld from interested persons. This requirement also applies to the continuing public participation process (e.g., relevant information must be provided to an advisory committee).

In the remainder of this section, there are serveral references to the recipient's "proposed program." A proposed program is a document that the recipient has developed through its planning process. It should reflect the view of the recipient concerning such key subjects as the type and characteristics of service, schedule for implementing the service, and the funding of the service. The proposed program should not be merely a general request for views or represent an immutable decision by the recipient on what it will provide. The proposal should be sufficiently thorough and detailed to permit commenters and speakers at the public

hearing to make informed criticisms and suggestions for improving the recipient's plans.

Subparagraph (a)(2) requires the recipient to provide a public comment period of at least 60 days on the proposed program. During the 60-day comment period, subparagraph (a)(3) provides that the recipient shall hold at least one public hearing. Notice of the hearing must be provided at least 30 days before the date on which the hearing is scheduled. The recipient could, for example, in notifying the public of the comment period, set a date, at least 30 days later, for the hearing, thereby avoiding the necessity for a second notice.

All hearings must be held in an accessible facility, and, if it is reasonably anticipated that persons with vision or hearing impairments will participate in the hearing, the recipient must take appropriate steps to facilitate their participation. For example, the recipient would have to ensure that an interpreter for deaf persons, or an individual to help communicate information contained on charts, graphs, or other visual aids to blind persons, was present at the hearing. The recipient should also select a time and place for the hearing that maximizes convenience to handicapped persons.

The regulation does not require that the public hearing involved be dedicated solely to the recipient's proposed program. Adequate time should be provided to ensure that all interested parties who wish to participate in the hearing have the opportunity to do so. The recipient must ensure that participation concerning the recipient's proposed program is not deterred by such techniques as the placement of its discussion at the end of a lengthy and time-consuming agenda. The program need not be the only, but should be the primary, matter discussed at any hearing held to meet the requirements of this section.

Subparagraph (a)(4) provides that the recipient shall ensure that all notices and materials pertaining to the program, comment period, and public hearings are made available in a form that persons with vision and hearing impairments can use. This implies notice being given in print (i.e., notices, placards in buses, newspaper advertisments, etc.) and by oral means (e.g., radio spots). For written materials other than notices of the comment period and the hearing, such as program documents and supporting information, the recipient should ensure that there are means of assisting visually handicapped individuals in learning the contents of these materials. It should be emphasized that this does not mean the recipient's personnel necessarily have to be used for this purpose. The recipient could also work with local voluntary or social service organizations to ensure that this service is provided.

Paragraph (b) requires the recipient to coordinate the development of its program with the MPO as well as to submit the proposed program to the MPO for comment at the same time as it is submitted to the public. The MPO, and concerned state and local governments, are intended to work with the recipient throughout the planning and implementation of the program.

Paragraph (c) of this section is the socalled "accommodate or explain" requirement. It should be emphasized that this paragraph does not require a recipient to make a point-by-point response to every comment. Nor does it require a recipient to agree with or adopt any or all comments it has received. The recipient is required to respond to "significant" comments it receives. That is, the recipient should respond to comments raising important substantive issues about the proposed program. Nonsubstantive or trivial comments need not receive responses.

Recipients' responses to comments may be relatively brief, so long as they give cogent reasons for the recipient's decision not to adopt a particular comment, to make a change requested by a comment, or to respond to a concern expressed by a commenter in a way different from that a commenter suggested.

The recipient may respond to comments in a variety of ways, such as letters to commenters, a preamble to the final program submitted to UMTA and made available to the public, or a separate document made available to all interested commenters and other members of the public. This document or documents should make clear to the public and to UMTA which commenters (and/or categories of commenters, in the case of individuals) made certain comments and the reasons for the recipient's responses.

Paragraph (d) concerns continuing public participation. This paragraph is not, as such, a requirement for an advisory committee. The recipient, as part of its program, may decide upon a mechanism to assure continuing public participation other than an advisory committee. The adequacy of any such mechanism would, of course, be reviewed by UMTA as part of its review of the recipient's program submission.

In setting up its advisory committee or other mechanism, the recipient should ensure its mechanism is widely representative of groups, interests and points of view on its service. Sharing of all relevant information is extremely important. An advisory committee or other public participation mechanism is of little use-and is inconsistent with the intent of this regulation—if its members are kept in the dark and their recommendations are ignored.

However, the views of the advisory committee or other continuing public participe tion mechanism are not required to be more than advice or recommendations. The rule does not require that the recipient adopt the suggestions of the participants in the process, or that an advisory committee be given veto or "sign-off" authority. Recipients may provide for stronger or more extensive roles for the participants in the continuing public participation process than the rule requires, however.

Paragraph (e) requires the recipient to follow the same public participation process for significant changes to its program as in the adoption of its initial program submitted to UMTA. The intent of this requirement is to ensure that interested persons and groups have the same opportunity to participate when the recipient makes significant changes in its program as when the initial program is put together. A re-run of the public participation process in this situation would not postpone the time at which the recipient is responsible for meeting the full performance level of § 27.95, however.

The Department intends this requirement to apply only to major alterations in the scope or direction of the recipient's program and service. It would apply, for example, if the recipient, having adopted, in its original program, a transit authority-operated paratransit system, decided to change to an accessible bus system. Even if the recipient was not changing the mode of delivering transit services to handicapped persons, the requirement could apply in the case of a major cutback or realignment of its existing service.

Recipients would not have to renew the public participation process in the case of fine tuning of or routine adjustments to service. (The recipient would have to consult through the continuing public participation mechanism on such changes, however.) If the recipient is in doubt about whether or not it should renew the public participation process of paragraph (a) through (c), the recipient should consult the UMTA Regional Office for guidance.

Section 27.85 Submission and review of program.

Paragraph (a) of this section directs all UMTA recipients who must create a program under § 27.81 to submit certain materials to the appropriate UMTA Regional Administrator for review and approval within 12 months of the effective date of this rule. Timely performance of this duty is a condition of compliance with the regulation.

Subparagraphs (a) (1) and (2) require the recipient to submit to UMTA copies of the comments on the recipient's program and the recipient's responses to these comments. The recipient could submit photocopies of the comment letters it received and the re

sponses it sent back to commenters to whom the recipient replied by letter. The recipient could submit summaries of comments and responses. The recipient could send a copy of the transcript of the public hearing. The recipient could send summaries of the comments and its responses to them, including summaries of presentations at the public hearing. It is not intended that informal replies made by the recipient's officers and employees at a hearing would be sufficient to constitute replies to comments for purposes of the "accommodate or explain" requirement, however. Whatever way the information is provided, it should allow UMTA to learn the substance of the comments and the identity of the persons or groups making the comments.

The planning process should involve a thorough analysis of the alternatives for providing transportation services to handicapped persons. The supporting documentation for the program submission should clearly reflect this analysis of alternatives (see subparagraph (a3)). Given what appear to be potential significant cost and cost-effectiveness advantages for privatesector related alternatives like user-side subsidies and coordination of services, and consistent with UMTA policy statements on private sector participation and user-side subsidies, UMTA will pay particular attention to recipients' consideration of these alternatives.

In looking at the costs of alternatives, including the alternative recommended in the recipient's program, the recipient should document expected eligible costs, including recurring as well as one-time capital and operating costs. This consideration of costs should cover the phase-in period to the full performance level, as well as the projected cost of providing service at the full performance level.

The Department emphasizes that the choice of the mode of service for handicapped persons is the recipient's. However, UMTA may question the planning process or its conclusions and, as part of its response to recipients' submissions, call for additional analytic work or a reconsideration of the recipient's recommendations.

Paragraph (b) sets a 120-day deadline for UMTA to complete review of recipients' programs. If UMTA fails to meet this deadline, it has the obligation to inform the recipient of an extension of the review period before the 120 days have passed. The written notice must state the reason for the extension. It will also include a reasonable estimate of the date on which UMTA will conclude review.

UMTA will carefully scrutinize the recipient's program to ensure that it provides for meeting the full performance level as soon as reasonably feasible, but within the 6-year

maximum phase-in period in any event. (UMTA will have the final decision on the appropriate length of the phase-in period.) UMTA will also check the program to ensure that its milestones lead realistically toward the full performance level. UMTA will not approve a program that does not meet these tests.

When UMTA does complete review, paragraph (c) provides that it will send one of three responses to the recipient. First, UMTA can tell the recipient that its program is approved as submitted. In this case, the program may go into effect at once, and the program's schedule for the implementation of service begins to run on the date of UMTA's approval notice. Second, UMTA can specify certain changes that need to be made in the program before it can be approved. Such a response can require both substantive changes (e.g., a change in the time, place, or manner of providing service) and procedural changes (e.g., additional public participation or recipient response to comments if UMTA concludes that procedures had not been fully adequate). UMTA can also require the recipient to revise its analysis or conduct additional analytic work.

The phase-in period would begin at the time of the original UMTA decision not to approve the program as submitted. It would not be appropriate to permit the time necessary for the recipient to fix program deficiencies to delay the implementation of full service to disabled persons. Finally, if it appears to UMTA that the program is so seriously deficient that the recipient needs to completely rework it, or it has been submitted in bad faith, UMTA may disapprove the program. UMTA has the discretion to begin enforcement action under subpart F at this point.

If the program is not approved as submitted, UMTA's notice will give the recipient a certain amount of time-between 30 and 90 days-to make necessary changes and resubmit it. Like failure to submit a program on time in the first place, failure to resubmit a modified program in the time required by UMTA subjects the recipient to being found in noncompliance with this rule. The time and notice provisions of paragraphs (c) and (d) apply to resubmissions just as they apply to initial submissions.

However, UMTA is not obligated to "bounce" deficient programs back to recipients indefinitely. UMTA may disapprove an original or a resubmitted program, conclude that the recipient is in noncompliance, and begin enforcement proceedings.

Section 27.87 Provision of service. Recipients have the obligation to actually provide the service to disabled persons that their programs promise. Paragraph (a) of this section makes the general statement

that each recipient shall, at all times, provide the service described in its program. The "at all times" language is intended to ensure the continuity of service. For example, a recipient could not, consistent with the requirements of this section, provide service meeting all the requirements of this regulation and its program for the first 21⁄2 weeks of a given month and then provide no service for the remainder of the month. Nor could the recipient provide the service for only 6 months out of the year. The service, moreover, must be provided to all eligible persons. It would not be consistent with this requirement for the recipient to provide service to some eligible persons but not to others.

Paragraph (b) sets out in greater detail some of the specific obligations that compliance with the general service provision requirement of paragraph (a) entails. The first of these is ensuring that vehicles and equipment are capable of being used by the users to which the service is directed, and are maintained in proper operating condition.

The recipient must ensure that all vehicles the recipient operates or relies upon to meet its obligations under this subpart are consistently maintained so that the vehicles can get to where they need to go in order to provide service. The recipient must also ensure that lifts and other specialized equipment needed to make vehicles usuable by handicapped persons work consistently so that handicapped persons can actually use the vehicles.

This paragraph also requires that the vehicles and equipment used by the recipient be capable of accommodating all users for which the service is designed. For example, a recipient which chose to comply with the rule by making its bus fleet accessible would have to ensure that the lifts, securement devices, etc. on its buses could accommodate all types of wheelchairs in common use. A lift which accommodates manual wheelchairs, but fails to accommodate common models of electric wheelchairs (including, for example, the increasingly popular threewheel designs) does not make the buses accessible. Providing only such limited-use lifts is inconsistent with this section. (Of course, if a special services component of a mixed system transported persons whose wheelchairs could not use the lifts to all destinations in the service area, and otherwise met the service criteria, the limitation on the use of the lifts would be permissible.)

UMTA will not mandate a particular spare ratio; the recipient's obligation, however, is to ensure that it has sufficient numbers of vehicles in operating condition in reserve, so that if "front line" vehicles must be taken off the road for maintenance or repair,