Notice of Policy Statement for Eligible New Freedom Projects, 19624-19627 [E9-9774]
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19624
Federal Register / Vol. 74, No. 81 / Wednesday, April 29, 2009 / Notices
OMB Control Number: 2137–0610.
Type of Request: Renewal of a
currently approved information
collection.
Abstract: 49 CFR 192.947 requires
operators of gas transmission pipelines
located in or near high consequence
areas to maintain a written integrity
management program and records
showing compliance with 49 CFR part
192, subpart O. In addition, operators
must submit documentation relative to
their integrity management program to
PHMSA as applicable.
Estimated number of respondents:
721.
Estimated annual burden hours:
1,030,343 hours.
Frequency of collection: On occasion.
Issued in Washington, DC, on April 23,
2009.
John A. Gale,
Director of Regulations, Office of Pipeline
Safety.
[FR Doc. E9–9775 Filed 4–28–09; 8:45 am]
BILLING CODE 4910–60–P
DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials
Safety Administration
Office of Hazardous Materials Safety;
Notice of Delays in Processing of
Special Permits Applications
AGENCY: Pipeline and Hazardous
Materials Safety Administration
(PHMSA), DOT.
ACTION: List of applications delayed
more than 180 days.
SUMMARY: In accordance with the
requirements of 49 U.S.C. 5117(c),
PHMSA is publishing the following list
of special permit applications that have
been in process for 180 days or more.
The reason(s) for delay and the expected
completion date for action on each
application is provided in association
with each identified application.
FOR FURTHER INFORMATION CONTACT:
Delmer F. Billings, Director, Office of
Hazardous Materials Special Permits
and Approvals, Pipeline and Hazardous
Materials Safety Administration, U.S.
Department of Transportation, East
Application No.
Building, PHH–30, 1200 New Jersey
Avenue Southeast, Washington, DC
20590–0001, (202) 366–4535.
Key to ‘‘Reason for Delay’’
1. Awaiting additional information
from applicant.
2. Extensive public comment under
review.
3. Application is technically complex
and is of significant impact or
precedent-setting and requires extensive
analysis.
4. Staff review delayed by other
priority issues or volume of special
permit applications.
Meaning of Application Number
Suffixes
N—New application.
M—Modification request.
PM—Party to application with
modification request.
Issued in Washington, DC, on April 21,
2009.
Delmer F. Billings,
Director, Office of Hazardous Materials,
Special Permits and Approvals.
Estimated
date of
completion
Reason for
delay
Applicant
MODIFICATION TO SPECIAL PERMITS
14167–M ...........
8723–M .............
Trinityrai, Dallas, TX .................................................................................................................
Alaska Pacific Powder, Company, Anchorage, AK ..................................................................
4
1
04–30–2009
04–30–2009
2,3
1,3
4
1
3
04–30–2009
06–30–2009
04–30–2009
05–31–2009
06–30–2009
NEW SPECIAL PERMIT APPLICATIONS
14689–N
14733–N
14767–N
14778–N
14779–N
...........
...........
...........
...........
...........
Trinity Industries, Inc., Dallas, TX ............................................................................................
GTM Technologies, Inc., San Francisco, CA ...........................................................................
Commodore Applied Technologies, Inc., Broomfield, CO .......................................................
MetalcraftlSea-Fire Marine Inc., Baltimore, MD .......................................................................
Corrosion Companies Inc., Washougal, WA ............................................................................
[FR Doc. E9–9477 Filed 4–28–09; 8:45 am]
BILLING CODE 4910–60–M
DEPARTMENT OF TRANSPORTATION
Federal Transit Administration
[Docket FTA–2009–0003]
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Notice of Policy Statement for Eligible
New Freedom Projects
AGENCY: Federal Transit Administration
(FTA), DOT.
ACTION: Notice.
SUMMARY: The Federal Transit
Administration (FTA) is expanding the
type of projects it considers to be
‘‘beyond the ADA’’ and thus increase
the types of projects eligible for funding
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17:48 Apr 28, 2009
Jkt 217001
under the New Freedom program.
Under this interpretation, new and
expanded fixed route and demand
responsive transit service planned for
and designed to meet the needs of
individuals with disabilities are eligible
projects.
DATES: Effective Date: May 29, 2009.
FOR FURTHER INFORMATION CONTACT:
David Schneider, Transportation
Program Specialist, Federal Transit
Administration, 1200 New Jersey Ave.
SE., Washington, DC 20590, (202) 493–
0175, or e-mail,
David.Schneider@dot.gov; or Bonnie
Graves, Attorney-Advisor, same address,
(202) 366–0944 or e-mail,
Bonnie.Graves@dot.gov.
SUPPLEMENTARY INFORMATION:
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Background
The New Freedom Program (49 U.S.C.
5317) was established to fund capital
and operating expenses that support
new public transportation services and
public transportation alternatives
beyond those required by the Americans
with Disabilities Act (ADA), in order to
assist individuals with disabilities with
transportation, including transportation
to and from jobs and employment
support services.
When developing guidance for the
New Freedom program, FTA initially
proposed that ‘‘new public
transportation services’’ and ‘‘public
transportation alternatives beyond those
required by the ADA’’ be considered
separate categories of service. (See 71
FR 13456, Mar. 15, 2006.) Subsequent to
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this notice, FTA received feedback from
the Congressional authors of the New
Freedom program legislation that
projects that do not meet both criteria—
new and beyond the ADA—are not
eligible for funding. FTA also
determined that projects are ‘‘beyond
the ADA’’ only if they allow a recipient
to exceed its obligations under the ADA.
For example, because the ADA and its
implementing regulations at 49 CFR
parts 37 and 38 provide very specific
minimum requirements for ADA
complementary paratransit service
when an agency provides fixed route
service, New Freedom funds can be
used to expand the scope of ADA
complementary paratransit service
beyond the minimum requirements
stipulated in the ADA regulations at 49
CFR part 37. On the other hand, the
ADA does not require that a minimum
level of public transit service be
provided in any given geographic area.
Once service is provided, however, it
must be ADA compliant, so FTA
determined that projects to establish or
expand fixed route or demand
responsive service would not result in
an agency exceeding its obligations
under the ADA, and therefore, would
not be eligible for New Freedom
funding. This interpretation was
conveyed in subsequent Federal
Register notices on the New Freedom
program (71 FR 52610, Sept. 6, 2006,
and 72 FR 14851, Mar. 29, 2007) and in
the Frequently Asked Questions
document on FTA’s Web site: https://
www.fta.dot.gov/funding/grants/
grants_financing_3549.html.
Over the course of 2008, grant
recipients have expressed concerns that
FTA’s interpretation of which projects
go ‘‘beyond the ADA’’ prevents agencies
in rural and small urbanized areas with
limited public transportation service
from using New Freedom funds to
provide new fixed route transit or
demand response transit service that
would be planned for and designed to
meet the needs of people with
disabilities. Stakeholders argue that
these types of projects do go ‘‘beyond
the ADA’’ because they represent
transportation services that are not
required under the Act or under the U.S.
Department of Transportation (DOT)
ADA implementing regulations.
Although stakeholders in areas with
limited public transportation service
can use New Freedom funds to
implement new alternatives to public
transportation, such as accessible taxis,
travel training, and mobility
management, many potential recipients
have informed FTA that their greatest
need is for new fixed route or demand
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responsive transportation services
designed to meet the mobility needs of
people with disabilities.
In response to these concerns, FTA
published a notice of proposed policy
for eligible New Freedom projects in the
Federal Register (74 FR 4284, Jan. 23,
2009). This notice proposed that new or
expanded fixed route service and new
or expanded demand response service
would be eligible for New Freedom
funding provided that:
(1) The service is identified in the
locally developed, coordinated public
transit-human services transportation
plan;
(2) The service is designed to meet the
needs of individuals with disabilities;
(3) The service removes barriers to
transportation and assists persons with
disabilities with transportation;
(4) The service was not operational on
August 10, 2005, and did not have an
identified funding source as of August
10, 2005, as evidenced by inclusion in
the Transportation Improvement
Program (TIP) or the State
Transportation Improvement Program
(STIP); and
(5) The service is not designed to
allow an agency to meet its obligations
under the ADA or the DOT ADA
implementing regulations at 49 CFR
parts 37 and 38.
The proposed policy change retained
the pre-existing requirement that
services under the program be ‘‘new’’
services and adopted the interpretation
voiced by transportation providers that
transit services other than those that are
required to be implemented under the
ADA go ‘‘beyond the ADA.’’ Interested
parties were invited to submit
comments on this proposed change
during the 30-day comment period,
which ended on February 23, 2009.
Comments Received and FTA Response
FTA received comments from 32
entities in response to its January 23,
2009, Federal Register notice. Nine
State DOT one other state agency, two
Metropolitan Planning Organizations,
nine public transportation agencies,
seven private not-for-profit
organizations, one private for-profit
organization, and three individuals
submitted comments.
Comment: A majority of commenters
expressed support for the proposed
policy change. These commenters stated
that the change would increase the
number of projects that could be funded
under their state or large urbanized
area’s New Freedom apportionment and
therefore decrease the amount of
unobligated funds; that the change
would expand mobility and
accessibility for people with disabilities;
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that the change would help local
stakeholders better meet the mobility
priorities that they had previously
identified; and that the change would
provide stakeholders with greater
flexibility and ensure that New Freedom
funds are used more effectively. Some
commenters cited specific services that
they believed would be valuable to their
community and that they believed
would be eligible for funding under the
proposed change. These comments are
consistent with the feedback that
prompted FTA to propose the policy
change and they influenced our
decision to issue a final policy that
expanded the types of projects that are
eligible for funding under the New
Freedom program.
Three commenters expressed
opposition to the proposed change.
These commenters stated that the
change was not consistent with the
intent of Congress when it established
the New Freedom program, that the
policy change would favor public
transportation services at the expense of
taxi services, and that taxi companies
that have already received New
Freedom funding may not receive
funding in the future should the
proposed change be enacted.
Commenters also stated that the change
runs counter to the New Freedom
program’s objective of promoting
innovative services for people with
disabilities, and that FTA should take
steps to ensure that fixed route services
are fully accessible for people with
disabilities before it allows New
Freedom funds to be used to expand
fixed-route or deviated-route services.
One commenter proposed that the
policy change only apply to New
Freedom program projects occurring in
areas with populations under 200,000.
FTA Response: Congress’ intentions
regarding which activities are eligible to
receive New Freedom funding are
expressed in 49 U.S.C. 5317(b)(1),
which states that ‘‘the Secretary may
make grants under this section to a
recipient for new public transportation
services and public transportation
alternatives beyond those required by
ADA of 1990 (42 U.S.C. 12101 et seq.)
that assist individuals with disabilities
with transportation, including
transportation to and from jobs and
employment support services.’’ While
Congress provided examples of services
that meet this provision, the meaning of
the statute’s reference to services
‘‘beyond those required by the
Americans with Disabilities Act’’
remains subject to interpretation.
FTA believes that it is in the public
interest to broaden its existing
interpretation of what services go
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‘‘beyond the ADA,’’ to include public
transportation services designed to meet
the needs of people with disabilities
other than those that are required under
the ADA, as well as public
transportation services that allow
providers to exceed their obligations
under the ADA. These two options are
not mutually exclusive. FTA’s new
interpretation makes additional
activities eligible for funding without
foreclosing on services that were already
eligible under FTA’s prior
interpretation.
Under the policy change, New
Freedom funds can continue to be used
to purchase and operate accessible taxis
and to provide individuals with
disabilities with vouchers to purchase
rides on taxi service, and those grant
recipients that have previously received
funds for taxi service can continue to
receive funds. The program’s
coordinated planning and competitive
selection requirements, which are
unaffected by this policy change, dictate
the process by which specific eligible
activities are selected by state and local
communities. Participants in the New
Freedom program’s coordinated public
transit human service transportation
planning process have discretion to
determine whether or not accessible
taxis or taxi service for people with
disabilities or some other eligible
activity best addresses the gaps between
existing transportation services and the
mobility needs of people with
disabilities. Additional information on
the coordinated planning process can be
found in Chapter V of FTA’s New
Freedom Circular 9045.1. The policy
change does not affect the ability of
local stakeholders to select eligible
alternatives to traditional public
transportation such as mobility
management, travel training, or voucher
programs. Whether these programs best
meet the priorities and needs of people
with disabilities is determined through
the local coordinated planning process.
Regarding the comment that FTA
should take steps to ensure that fixed
route services are fully accessible for
people with disabilities before it allows
New Freedom funds to be used for
expand fixed-route or deviated-route
services, FTA is committed to ensuring
that existing fixed route services comply
with the ADA and follow the
procedures for effecting compliance
established under the DOT regulations
at 49 CFR part 27. These regulations,
rather than conditioning the New
Freedom policy, provide the appropriate
mechanisms for addressing noncompliance with the ADA.
Regarding the suggestion that the
policy change apply only to areas with
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17:48 Apr 28, 2009
Jkt 217001
populations under 200,000, while most
of the concern over the pre-existing
policy on eligible activities was
expressed by stakeholders residing in
small urbanized or non-urbanized areas,
FTA’s policy change applies to New
Freedom activities in all geographic
areas. Participants in the coordinated
planning processes in all areas can
determine whether or not to choose
activities that are now eligible under
this policy change.
Comment: Several commenters
expressed neither support nor
opposition to the policy change, but
instead posed questions regarding the
proposal or requested that FTA clarify
the proposal. Seven commenters raised
questions or submitted feedback on the
proposed policy’s requirement that new
or expanded fixed route or demand
response services be designed to meet
the needs of individuals with
disabilities in order to be eligible for
funding. One commenter asked whether
new or expanded fixed route or demand
response transit service could serve
members of the public in addition to
people with disabilities. Two other
commenters opposed projects that
would provide segregated service for
people with disabilities. A fourth
commenter asked for guidance and
criteria for determining whether a new
or expanded service is designed to meet
the mobility needs of people with
disabilities as opposed to the mobility
needs of the public at large. A fifth
commenter cautioned that New
Freedom funds should not be used to
support projects that would serve the
public at large and could be funded
with general operating funds, and stated
that U.S. DOT needs to provide
oversight to ensure that services funded
under the New Freedom program meet
the intent of the law. Another
commenter stated that if grantees intend
to use the New Freedom funds for
general fixed route service, they need to
demonstrate in their grant application
how the service would provide unique
benefits to people with disabilities.
Another commenter stated that a fixed
route or demand response service
should not be eligible for New Freedom
funding simply because it provides
accessible service for people with
disabilities.
FTA response: The final policy
reiterates FTA’s expectation that new or
expanded fixed route and demand
response services be open to the general
public and that grant recipients refrain
from creating new ‘‘silo’’ transportation
that segregates individuals with
disabilities from the public at large. At
the same time, in order to ensure that
new services provide benefits to people
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Fmt 4703
Sfmt 4703
with disabilities, the final policy states
that the service must be planned and
designed to meet the mobility needs of
individuals with disabilities in response
to circumstances where existing fixed
route and demand response service is
unavailable or insufficient. Examples of
such services would be a fixed route
service that is open to the general public
but that is extended to serve a
congregate living facility or a workplace
serving large numbers of individuals
with disabilities, or demand response
service that is available to the general
public but whose service area coverage
or span of service is designed in
response to mobility needs expressed by
individuals with disabilities.
FTA will presume that a project is
planned and designed to meet the
mobility needs of individuals with
disabilities if the project is identified in
the grant applicant’s coordinated public
transit human services transportation
plan. These plans identify the
transportation needs of individuals with
disabilities, provide strategies for
meeting these local needs, and prioritize
transportation services for funding and
implementation. New Freedom
applicants are required to certify that
projects were derived from a
coordinated plan and reference the page
number of the plan that contains
information on the projects.
Comment: One commenter raised
questions regarding the proposed policy
change’s definition of ‘‘new’’ service,
asking at what point in time a project
funded with New Freedom projects
would no longer be considered ‘‘new.’’
FTA response: The definition of a
‘‘new’’ project has not changed. Once a
New Freedom project has been funded,
it remains ‘‘new’’ for the duration of the
program and can continue to receive
New Freedom funds.
Comment: FTA received comments
from individuals or organizations on
other aspects of the proposed policy
change. Two commenters suggested that
FTA pursue this change through a
rulemaking process, and one commenter
requested greater clarification on
projects that will be eligible under the
new guidance that would not have been
available under previous rules and what
barriers remain to full implementation
of the New Freedom program. One
commenter requested FTA review New
Freedom applications more closely for
genuine involvement of the disability
community in the planning process.
FTA response: FTA determined that a
rulemaking process was not necessary to
change its determination of which
projects are eligible under the New
Freedom program because the policy
does not impose binding obligations on
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Federal Register / Vol. 74, No. 81 / Wednesday, April 29, 2009 / Notices
for funding under the New Freedom
program, provided that these services:
(1) Are identified in the grant
applicant’s coordinated public transithuman services transportation plan;
(2) Are available to the public at large
but were planned and designed to meet
the mobility needs of individuals with
disabilities in response to circumstances
where existing fixed route and demand
response transportation is unavailable
or insufficient to meet the mobility
needs of individuals with disabilities.
(3) Were not operational on August
10, 2005, and did not have an identified
funding source as of August 10, 2005, as
evidenced by inclusion in the
Transportation Improvement Program
(TIP) or the State Transportation
Improvement Program (STIP); and
(4) Are not designed to allow an
agency to meet its obligations under the
ADA or the DOT ADA implementing
regulations at 49 CFR parts 37 and 38.
Examples of such services would be a
fixed route service that is open to the
general public but that is extended to
serve a congregate living facility or a
workplace serving large numbers of
individuals with disabilities, or demand
response service that is available to the
general public but whose service
coverage or span of service is designed
in response to mobility needs expressed
by individuals with disabilities. FTA
notes that expanded fixed route service
may result in expanded ADA
complementary paratransit service;
since the ADA complementary
paratransit service is required under the
ADA, it would not be eligible for New
Freedom funding. All new or expanded
fixed route and demand responsive
services funded under the New Freedom
program will be subject to the
requirements of the ADA and DOT ADA
implementing regulations.
Final Policy
pwalker on PROD1PC71 with NOTICES
grant recipients or other parties. This
notice provides additional clarification
on which projects are eligible under the
new guidance, however an analysis of
what barriers remain to full
implementation of the New Freedom
program is beyond the scope of this
notice.
Regarding concerns over a lack of
involvement of the disability
community in the coordinated planning
process, FTA requires New Freedom
grant applicants to certify that the
coordinated plan from which New
Freedom projects were derived was
developed through a process that
includes representatives of public,
private, and non-profit transportation
and human services providers and
participation by members of the public.
FTA’s New Freedom circular includes
guidance on ensuring adequate outreach
to allow for participation and on
providing explicit consideration and
response to public input received
during the development of a
coordinated plan. However, FTA does
not review details of a coordinated
plan’s public involvement process in
advance of making a grant award
because doing so could significantly
delay the award of New Freedom, JARC,
and Section 5310 program funds to
recipients and subrecipients. Grant
recipients are required to certify that the
coordinated planning process’ public
participation requirements were met,
and FTA reviews these certifications
during Triennial and State Management
Reviews. If recipients cannot document
that the requirement was met, then FTA
issues a finding of deficiency and the
recipient is required to take corrective
action.
FTA received several comments
regarding the New Freedom program
that were not germane to the proposed
policy change, including a request that
New Freedom funds subsidize capital
expenses at a 50/50 rather than an 80/
20 Federal local match, and that the
New Freedom circular state specifically
that the program provides
reimbursements to grant recipients. FTA
will consider these comments in the
context of its ongoing work to provide
guidance and technical assistance on
the New Freedom program.
Public Transportation on Indian
Reservations Program; Tribal Transit
Program
New or expanded fixed route service
and new or expanded demand response
service constitute new public
transportation services beyond those
required by ADA of 1990 (42 U.S.C.
Section 12101 et seq.) that assist
individuals with disabilities with
transportation, and are therefore eligible
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17:48 Apr 28, 2009
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Issued in Washington, DC, this 17th day of
April 2009.
Matthew J. Welbes,
Acting Deputy Administrator.
[FR Doc. E9–9774 Filed 4–28–09; 8:45 am]
BILLING CODE 4910–57–P
DEPARTMENT OF TRANSPORTATION
Federal Transit Administration
AGENCY: Federal Transit Administration
(FTA), DOT.
ACTION: Notice of Funding Availability:
Solicitation of Grant Applications for
FY 2009 Tribal Transit Program Funds.
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19627
SUMMARY: This notice announces the
availability of $15 million in funding
provided by the Public Transportation
on Indian Reservations Program (Tribal
Transit Program (TTP)), a program
authorized by the Safe, Accountable,
Flexible, Efficient Transportation Equity
Act: A Legacy for Users (SAFETEA–LU),
Section 3013 (c). This notice is a
national solicitation for grant applicants
to be selected on a competitive basis,
and it includes the grant terms and
conditions; grant application
procedures; and selection criteria for
Fiscal Year (FY) 2009 projects. The
Federal Transit Administration (FTA)
announced the availability of, and
competition for, the FY 2009 American
Recovery and Reinvestment Act (ARRA)
TTP funding in a separate notice
published on March 23, 2009.
ADDRESSES: Applicants may submit
applications in one of two ways: (1)
Delivering five hard copies to FTA, 1200
New Jersey Avenue, SE., Washington,
DC, 20590, Attn: Lorna R. Wilson; (2)
sending by e-mail to
fta.tribalprogram@dot.gov. FTA will not
accept applications via facsimile.
DATES: Applicants must submit
completed applications by June 29,
2009. FTA will announce grant
selections in the Federal Register when
the competitive selection process is
complete.
Applicants should be aware that
materials sent through the U.S. Postal
Service are subject to significant delays
in delivery due to the security screening
process. Use of courier or express
delivery services is recommended.
FOR FURTHER INFORMATION CONTACT:
Contact the appropriate FTA Regional
Tribal Liaison (Appendix B) for
application-specific information. For
general program information, contact
Lorna R. Wilson, Office of Transit
Programs, at (202) 366–2053, e-mail:
Lorna.Wilson@dot.gov. A TDD is
available at 1–800–877–8339 (TDD/
FIRS).
SUPPLEMENTARY INFORMATION
Table of Contents
I. Overview
II. Background
III. Funding Opportunity Description
A. Authorized Funding for FY 2009
IV. Award Information
V. Eligibility Information
A. Eligible Applicants
B. Eligible Projects
VI. Local Match
VII. Terms and Conditions
VIII. Guidelines for Preparing Grant
Application
IX. Application Content
A. Application Information
B. Technical, Legal, and Financial Capacity
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]]>Agencies
[Federal Register Volume 74, Number 81 (Wednesday, April 29, 2009)]
[Notices]
[Pages 19624-19627]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-9774]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Transit Administration
[Docket FTA-2009-0003]
Notice of Policy Statement for Eligible New Freedom Projects
AGENCY: Federal Transit Administration (FTA), DOT.
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: The Federal Transit Administration (FTA) is expanding the type
of projects it considers to be ``beyond the ADA'' and thus increase the
types of projects eligible for funding under the New Freedom program.
Under this interpretation, new and expanded fixed route and demand
responsive transit service planned for and designed to meet the needs
of individuals with disabilities are eligible projects.
DATES: Effective Date: May 29, 2009.
FOR FURTHER INFORMATION CONTACT: David Schneider, Transportation
Program Specialist, Federal Transit Administration, 1200 New Jersey
Ave. SE., Washington, DC 20590, (202) 493-0175, or e-mail,
David.Schneider@dot.gov; or Bonnie Graves, Attorney-Advisor, same
address, (202) 366-0944 or e-mail, Bonnie.Graves@dot.gov.
SUPPLEMENTARY INFORMATION:
Background
The New Freedom Program (49 U.S.C. 5317) was established to fund
capital and operating expenses that support new public transportation
services and public transportation alternatives beyond those required
by the Americans with Disabilities Act (ADA), in order to assist
individuals with disabilities with transportation, including
transportation to and from jobs and employment support services.
When developing guidance for the New Freedom program, FTA initially
proposed that ``new public transportation services'' and ``public
transportation alternatives beyond those required by the ADA'' be
considered separate categories of service. (See 71 FR 13456, Mar. 15,
2006.) Subsequent to
[[Page 19625]]
this notice, FTA received feedback from the Congressional authors of
the New Freedom program legislation that projects that do not meet both
criteria--new and beyond the ADA--are not eligible for funding. FTA
also determined that projects are ``beyond the ADA'' only if they allow
a recipient to exceed its obligations under the ADA. For example,
because the ADA and its implementing regulations at 49 CFR parts 37 and
38 provide very specific minimum requirements for ADA complementary
paratransit service when an agency provides fixed route service, New
Freedom funds can be used to expand the scope of ADA complementary
paratransit service beyond the minimum requirements stipulated in the
ADA regulations at 49 CFR part 37. On the other hand, the ADA does not
require that a minimum level of public transit service be provided in
any given geographic area. Once service is provided, however, it must
be ADA compliant, so FTA determined that projects to establish or
expand fixed route or demand responsive service would not result in an
agency exceeding its obligations under the ADA, and therefore, would
not be eligible for New Freedom funding. This interpretation was
conveyed in subsequent Federal Register notices on the New Freedom
program (71 FR 52610, Sept. 6, 2006, and 72 FR 14851, Mar. 29, 2007)
and in the Frequently Asked Questions document on FTA's Web site:
https://www.fta.dot.gov/funding/grants/grants_financing_3549.html.
Over the course of 2008, grant recipients have expressed concerns
that FTA's interpretation of which projects go ``beyond the ADA''
prevents agencies in rural and small urbanized areas with limited
public transportation service from using New Freedom funds to provide
new fixed route transit or demand response transit service that would
be planned for and designed to meet the needs of people with
disabilities. Stakeholders argue that these types of projects do go
``beyond the ADA'' because they represent transportation services that
are not required under the Act or under the U.S. Department of
Transportation (DOT) ADA implementing regulations. Although
stakeholders in areas with limited public transportation service can
use New Freedom funds to implement new alternatives to public
transportation, such as accessible taxis, travel training, and mobility
management, many potential recipients have informed FTA that their
greatest need is for new fixed route or demand responsive
transportation services designed to meet the mobility needs of people
with disabilities.
In response to these concerns, FTA published a notice of proposed
policy for eligible New Freedom projects in the Federal Register (74 FR
4284, Jan. 23, 2009). This notice proposed that new or expanded fixed
route service and new or expanded demand response service would be
eligible for New Freedom funding provided that:
(1) The service is identified in the locally developed, coordinated
public transit-human services transportation plan;
(2) The service is designed to meet the needs of individuals with
disabilities;
(3) The service removes barriers to transportation and assists
persons with disabilities with transportation;
(4) The service was not operational on August 10, 2005, and did not
have an identified funding source as of August 10, 2005, as evidenced
by inclusion in the Transportation Improvement Program (TIP) or the
State Transportation Improvement Program (STIP); and
(5) The service is not designed to allow an agency to meet its
obligations under the ADA or the DOT ADA implementing regulations at 49
CFR parts 37 and 38.
The proposed policy change retained the pre-existing requirement
that services under the program be ``new'' services and adopted the
interpretation voiced by transportation providers that transit services
other than those that are required to be implemented under the ADA go
``beyond the ADA.'' Interested parties were invited to submit comments
on this proposed change during the 30-day comment period, which ended
on February 23, 2009.
Comments Received and FTA Response
FTA received comments from 32 entities in response to its January
23, 2009, Federal Register notice. Nine State DOT one other state
agency, two Metropolitan Planning Organizations, nine public
transportation agencies, seven private not-for-profit organizations,
one private for-profit organization, and three individuals submitted
comments.
Comment: A majority of commenters expressed support for the
proposed policy change. These commenters stated that the change would
increase the number of projects that could be funded under their state
or large urbanized area's New Freedom apportionment and therefore
decrease the amount of unobligated funds; that the change would expand
mobility and accessibility for people with disabilities; that the
change would help local stakeholders better meet the mobility
priorities that they had previously identified; and that the change
would provide stakeholders with greater flexibility and ensure that New
Freedom funds are used more effectively. Some commenters cited specific
services that they believed would be valuable to their community and
that they believed would be eligible for funding under the proposed
change. These comments are consistent with the feedback that prompted
FTA to propose the policy change and they influenced our decision to
issue a final policy that expanded the types of projects that are
eligible for funding under the New Freedom program.
Three commenters expressed opposition to the proposed change. These
commenters stated that the change was not consistent with the intent of
Congress when it established the New Freedom program, that the policy
change would favor public transportation services at the expense of
taxi services, and that taxi companies that have already received New
Freedom funding may not receive funding in the future should the
proposed change be enacted. Commenters also stated that the change runs
counter to the New Freedom program's objective of promoting innovative
services for people with disabilities, and that FTA should take steps
to ensure that fixed route services are fully accessible for people
with disabilities before it allows New Freedom funds to be used to
expand fixed-route or deviated-route services. One commenter proposed
that the policy change only apply to New Freedom program projects
occurring in areas with populations under 200,000.
FTA Response: Congress' intentions regarding which activities are
eligible to receive New Freedom funding are expressed in 49 U.S.C.
5317(b)(1), which states that ``the Secretary may make grants under
this section to a recipient for new public transportation services and
public transportation alternatives beyond those required by ADA of 1990
(42 U.S.C. 12101 et seq.) that assist individuals with disabilities
with transportation, including transportation to and from jobs and
employment support services.'' While Congress provided examples of
services that meet this provision, the meaning of the statute's
reference to services ``beyond those required by the Americans with
Disabilities Act'' remains subject to interpretation.
FTA believes that it is in the public interest to broaden its
existing interpretation of what services go
[[Page 19626]]
``beyond the ADA,'' to include public transportation services designed
to meet the needs of people with disabilities other than those that are
required under the ADA, as well as public transportation services that
allow providers to exceed their obligations under the ADA. These two
options are not mutually exclusive. FTA's new interpretation makes
additional activities eligible for funding without foreclosing on
services that were already eligible under FTA's prior interpretation.
Under the policy change, New Freedom funds can continue to be used
to purchase and operate accessible taxis and to provide individuals
with disabilities with vouchers to purchase rides on taxi service, and
those grant recipients that have previously received funds for taxi
service can continue to receive funds. The program's coordinated
planning and competitive selection requirements, which are unaffected
by this policy change, dictate the process by which specific eligible
activities are selected by state and local communities. Participants in
the New Freedom program's coordinated public transit human service
transportation planning process have discretion to determine whether or
not accessible taxis or taxi service for people with disabilities or
some other eligible activity best addresses the gaps between existing
transportation services and the mobility needs of people with
disabilities. Additional information on the coordinated planning
process can be found in Chapter V of FTA's New Freedom Circular 9045.1.
The policy change does not affect the ability of local stakeholders to
select eligible alternatives to traditional public transportation such
as mobility management, travel training, or voucher programs. Whether
these programs best meet the priorities and needs of people with
disabilities is determined through the local coordinated planning
process.
Regarding the comment that FTA should take steps to ensure that
fixed route services are fully accessible for people with disabilities
before it allows New Freedom funds to be used for expand fixed-route or
deviated-route services, FTA is committed to ensuring that existing
fixed route services comply with the ADA and follow the procedures for
effecting compliance established under the DOT regulations at 49 CFR
part 27. These regulations, rather than conditioning the New Freedom
policy, provide the appropriate mechanisms for addressing non-
compliance with the ADA.
Regarding the suggestion that the policy change apply only to areas
with populations under 200,000, while most of the concern over the pre-
existing policy on eligible activities was expressed by stakeholders
residing in small urbanized or non-urbanized areas, FTA's policy change
applies to New Freedom activities in all geographic areas. Participants
in the coordinated planning processes in all areas can determine
whether or not to choose activities that are now eligible under this
policy change.
Comment: Several commenters expressed neither support nor
opposition to the policy change, but instead posed questions regarding
the proposal or requested that FTA clarify the proposal. Seven
commenters raised questions or submitted feedback on the proposed
policy's requirement that new or expanded fixed route or demand
response services be designed to meet the needs of individuals with
disabilities in order to be eligible for funding. One commenter asked
whether new or expanded fixed route or demand response transit service
could serve members of the public in addition to people with
disabilities. Two other commenters opposed projects that would provide
segregated service for people with disabilities. A fourth commenter
asked for guidance and criteria for determining whether a new or
expanded service is designed to meet the mobility needs of people with
disabilities as opposed to the mobility needs of the public at large. A
fifth commenter cautioned that New Freedom funds should not be used to
support projects that would serve the public at large and could be
funded with general operating funds, and stated that U.S. DOT needs to
provide oversight to ensure that services funded under the New Freedom
program meet the intent of the law. Another commenter stated that if
grantees intend to use the New Freedom funds for general fixed route
service, they need to demonstrate in their grant application how the
service would provide unique benefits to people with disabilities.
Another commenter stated that a fixed route or demand response service
should not be eligible for New Freedom funding simply because it
provides accessible service for people with disabilities.
FTA response: The final policy reiterates FTA's expectation that
new or expanded fixed route and demand response services be open to the
general public and that grant recipients refrain from creating new
``silo'' transportation that segregates individuals with disabilities
from the public at large. At the same time, in order to ensure that new
services provide benefits to people with disabilities, the final policy
states that the service must be planned and designed to meet the
mobility needs of individuals with disabilities in response to
circumstances where existing fixed route and demand response service is
unavailable or insufficient. Examples of such services would be a fixed
route service that is open to the general public but that is extended
to serve a congregate living facility or a workplace serving large
numbers of individuals with disabilities, or demand response service
that is available to the general public but whose service area coverage
or span of service is designed in response to mobility needs expressed
by individuals with disabilities.
FTA will presume that a project is planned and designed to meet the
mobility needs of individuals with disabilities if the project is
identified in the grant applicant's coordinated public transit human
services transportation plan. These plans identify the transportation
needs of individuals with disabilities, provide strategies for meeting
these local needs, and prioritize transportation services for funding
and implementation. New Freedom applicants are required to certify that
projects were derived from a coordinated plan and reference the page
number of the plan that contains information on the projects.
Comment: One commenter raised questions regarding the proposed
policy change's definition of ``new'' service, asking at what point in
time a project funded with New Freedom projects would no longer be
considered ``new.''
FTA response: The definition of a ``new'' project has not changed.
Once a New Freedom project has been funded, it remains ``new'' for the
duration of the program and can continue to receive New Freedom funds.
Comment: FTA received comments from individuals or organizations on
other aspects of the proposed policy change. Two commenters suggested
that FTA pursue this change through a rulemaking process, and one
commenter requested greater clarification on projects that will be
eligible under the new guidance that would not have been available
under previous rules and what barriers remain to full implementation of
the New Freedom program. One commenter requested FTA review New Freedom
applications more closely for genuine involvement of the disability
community in the planning process.
FTA response: FTA determined that a rulemaking process was not
necessary to change its determination of which projects are eligible
under the New Freedom program because the policy does not impose
binding obligations on
[[Page 19627]]
grant recipients or other parties. This notice provides additional
clarification on which projects are eligible under the new guidance,
however an analysis of what barriers remain to full implementation of
the New Freedom program is beyond the scope of this notice.
Regarding concerns over a lack of involvement of the disability
community in the coordinated planning process, FTA requires New Freedom
grant applicants to certify that the coordinated plan from which New
Freedom projects were derived was developed through a process that
includes representatives of public, private, and non-profit
transportation and human services providers and participation by
members of the public. FTA's New Freedom circular includes guidance on
ensuring adequate outreach to allow for participation and on providing
explicit consideration and response to public input received during the
development of a coordinated plan. However, FTA does not review details
of a coordinated plan's public involvement process in advance of making
a grant award because doing so could significantly delay the award of
New Freedom, JARC, and Section 5310 program funds to recipients and
subrecipients. Grant recipients are required to certify that the
coordinated planning process' public participation requirements were
met, and FTA reviews these certifications during Triennial and State
Management Reviews. If recipients cannot document that the requirement
was met, then FTA issues a finding of deficiency and the recipient is
required to take corrective action.
FTA received several comments regarding the New Freedom program
that were not germane to the proposed policy change, including a
request that New Freedom funds subsidize capital expenses at a 50/50
rather than an 80/20 Federal local match, and that the New Freedom
circular state specifically that the program provides reimbursements to
grant recipients. FTA will consider these comments in the context of
its ongoing work to provide guidance and technical assistance on the
New Freedom program.
Final Policy
New or expanded fixed route service and new or expanded demand
response service constitute new public transportation services beyond
those required by ADA of 1990 (42 U.S.C. Section 12101 et seq.) that
assist individuals with disabilities with transportation, and are
therefore eligible for funding under the New Freedom program, provided
that these services:
(1) Are identified in the grant applicant's coordinated public
transit-human services transportation plan;
(2) Are available to the public at large but were planned and
designed to meet the mobility needs of individuals with disabilities in
response to circumstances where existing fixed route and demand
response transportation is unavailable or insufficient to meet the
mobility needs of individuals with disabilities.
(3) Were not operational on August 10, 2005, and did not have an
identified funding source as of August 10, 2005, as evidenced by
inclusion in the Transportation Improvement Program (TIP) or the State
Transportation Improvement Program (STIP); and
(4) Are not designed to allow an agency to meet its obligations
under the ADA or the DOT ADA implementing regulations at 49 CFR parts
37 and 38.
Examples of such services would be a fixed route service that is
open to the general public but that is extended to serve a congregate
living facility or a workplace serving large numbers of individuals
with disabilities, or demand response service that is available to the
general public but whose service coverage or span of service is
designed in response to mobility needs expressed by individuals with
disabilities. FTA notes that expanded fixed route service may result in
expanded ADA complementary paratransit service; since the ADA
complementary paratransit service is required under the ADA, it would
not be eligible for New Freedom funding. All new or expanded fixed
route and demand responsive services funded under the New Freedom
program will be subject to the requirements of the ADA and DOT ADA
implementing regulations.
Issued in Washington, DC, this 17th day of April 2009.
Matthew J. Welbes,
Acting Deputy Administrator.
[FR Doc. E9-9774 Filed 4-28-09; 8:45 am]
BILLING CODE 4910-57-P
