[Federal Register Volume 71, Number 146 (Monday, July 31, 2006)]
[Notices]
[Pages 43280-43284]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-12137]
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DEPARTMENT OF TRANSPORTATION
Federal Transit Administration
[Docket No. FTA-2006-25365]
Formula Grants for Other Than Urbanized Areas Program (49 U.S.C.
5311): Notice of Program Guidance
AGENCY: Federal Transit Administration (FTA), DOT.
ACTION: Notice of proposed program guidance and request for comments.
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SUMMARY: This Notice proposes guidance in the form of a revised program
circular for the Federal Transit Administration's Formula Grants for
Other Than Urbanized Areas Program (Section 5311) and seeks comments on
the proposed circular. It also addresses comments FTA received with
regard to its Section 5311 program in response to a Federal Register
Notice entitled, ``FTA Transit Program Changes, Authorized Funding
Levels and Implementation of the Safe, Accountable, Flexible, Efficient
Transportation Equity Act: A Legacy for Users'' (70 FR 71950, November
30, 2005), in addition to comments received during several public
listening sessions. The proposed circular will be available in Docket
Number: FTA-2006-25365 at http://dms.dot.gov.
DATES: Comments should be submitted by September 29, 2006. Late-filed
comments will be considered to the extent practicable.
ADDRESSES: You may submit comments identified by the docket number
[FTA-2006-25365] by any of the following methods:
1. Web site:http://dms.dot.gov. Follow the instructions for
submitting comments on the DOT electronic docket site.
2. Fax: 202-493-2251.
3. Mail: Docket Management Facility; U.S. Department of
Transportation, 400 Seventh Street, SW., Nassif Building, PL-401,
Washington, DC 20590-0001.
4. Hand Delivery: Room PL-401 on the plaza level of the Nassif
Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5
p.m., Monday through Friday, except Federal holidays.
Instructions: You must include the agency name (Federal Transit
Administration) and the Docket number (FTA-2006-25365) for this Notice
at the beginning of your comments. You should submit two copies of your
comments if you submit them by mail. If you wish to receive
confirmation that FTA received your comments, you must include a self-
addressed stamped postcard. Note that all comments received will be
posted, without change, to http://dms.dot.gov including any personal
information provided and will be available to internet users. You may
review DOT's complete Privacy Act Statement in the Federal Register
published on April 11, 2000 (65 FR 19477) or you may visit http://dms.dot.gov. Docket: For access to the docket to read background
documents and comments received, go to http://dms.dot.gov at any time
or to Room PL-401 on the plaza level of the Nassif Building, 400
Seventh Street, SW., Washington, DC between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays.
FOR FURTHER INFORMATION CONTACT: Lorna Wilson, Office of Program
Management, Federal Transit Administration, 400 Seventh Street, SW.,
Room 9114, Washington, DC 20590, phone: (202) 366-2053, fax: (202) 366-
7951, or e-mail, [email protected]. Legal questions may be addressed
to Richard L. Wong, Office of Chief Counsel, Federal Transit
Administration, 400 Seventh Street, SW., Room 9316, Washington, DC
20590, phone: (202) 366-4011, fax: (202) 366-3809, or e-mail,
[email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Overview
II. Chapter-by-Chapter Analysis
A. Chapter I--Introduction and Background
B. Chapter II--Program Overview
C. Chapter III--General Program Information
D. Chapter IV--Program Development
E. Chapter V--Locally Developed, Coordinated Public Transit--
Human Services Transportation Plan
F. Chapter VI--Program Management and Administrative
Requirements
G. Chapter VII--State Management Plan
H. Chapter VIII--Intercity Bus
I. Chapter IX--Rural Transportation Assistance Program
J. Chapter X--Other Provisions
K. Appendices
I. Overview
This proposed circular revises the existing FTA Circular 9040.1E,
``Nonurbanized Area Formula Program Guidance and Grant Application
Instructions,'' dated 10-01-98.
On November 30, 2005, FTA published a Federal Register Notice,
``Transit Program Changes, Authorized Funding Levels and Implementation
of the Safe, Accountable, Flexible, Efficient Transportation Equity
Act: A Legacy for Users'' (70 FR 71950, November 30, 2005), which
described new programs and changes to or extensions of existing
programs contained in its new reauthorization legislation, the Safe,
Accountable, Flexible, Efficient Transportation Equity Act: A Legacy
for Users (SAFETEA-LU). In addition, FTA held public listening sessions
in five locations around the country, a conference call with State
administering agencies, and a meeting with representatives of the
intercity bus industry.
In its November 30th Federal Register Notice, FTA requested public
comment on several specific issues such as whether the State-based
rural data module should serve as the basis for the new mandatory
reporting requirements. Another issue was whether the per State minimum
distribution of Rural Transportation Assistance Program (RTAP) funds
(floor) should again be raised and whether the low density portion of
the Section 5311 formula should be used as a basis for Section 5311
RTAP formula apportionments. FTA also sought comments on use of the
national RTAP resource.
This Notice acknowledges comments received by FTA from the November
30th Notice and additional comments received during FTA's public
outreach efforts. The Notice also seeks comments on the proposed
revisions to the existing circular. The text of the proposed circular
is available in its entirety in the docket.
Although the proposed circular addressed by this Notice contains
summaries of cross-cutting provisions such as Charter Bus, Buy America,
Title VI, and Equal Employment Opportunity (EEO) requirements, those
subjects are addressed by separate dockets, therefore, the public
should not submit comments on those topics to the docket for this
circular. Persons seeking to view and provide comments to those dockets
can do so through the Department of Transportation's Docket Management
System (http://dms.dot.gov). Docket numbers for some of those cross-
cutting proposals are as follows:
Charter Bus............................... Docket 22657
Buy America............................... Docket 23082
Title VI.................................. Docket 23227
EEO....................................... Docket 23227
FTA reserves the right to make changes to this circular in the
future to update references to requirements contained in other revised
or new guidance and regulations without further notice and comment on
this circular.
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II. Chapter-by-Chapter Analysis
A. Chapter I--Introduction and Background
This chapter is a general introduction to FTA that is proposed to
be included in all new and revised program circulars for the
orientation of readers new to the FTA programs. Chapter I also includes
definitions.
B. Chapter II--Program Overview
This chapter replaces the former Chapter I, ``General Overview,''
in Circular 9040.1E. It provides an overview of the Section 5311
program in terms of its statutory authority and program goals. It
defines the role of States and FTA, and explains the program's
relationship to other FTA-funded programs, as well as its coordination
with other Federal programs. It contains the same information as the
existing circular, with minor updates.
C. Chapter III--General Program Information
This chapter consolidates the former Chapters II ``Apportionments''
and III ``Eligibility'' in Circular 9040.1E. This revised chapter sets
forth the basis for the apportionment of Section 5311 funds including,
the availability of those funds and the transfer of funds. It also
identifies eligible recipients and expenses, and the Federal-State
matching ratio. The discussion of use of other Federal funds as match
was expanded to clarify that Section 5310 funds used to purchase
service from a Section 5311 subrecipient cannot be used to match
Section 5311 program funds. Although this revised chapter retains much
of the content of the original two chapters, it includes several
changes required by SAFETEA-LU: A sliding scale that permits a higher
Federal share for capital and operating costs for several States based
on a formula used by the Federal Highway Administration; an expanded
list of eligible capital expenses for crime prevention and security;
and the eligibility of Mobility Management as a capital expense.
One commenter asked that FTA broaden project eligibility to include
capital items eligible under Section 5309, such as park and ride lots,
in order to respond to the varying needs of the States and the areas to
be served by the Section 5311 program.
FTA agrees with this recommendation, and proposes to clarify that
the definition of eligible capital activities in 49 U.S.C. 5302(a)(1)
applies to the Section 5311 program, which would include park and ride
lots. The proposed circular provides additional guidance on some
aspects of capital eligibility, and it details eligibility requirements
specific to the program.
Other commenters asked whether Federal funds received from other
than U.S. Department Of Transportation (DOT) sources (e.g., USDA) can
be used as the local matching share. Another commenter noted that a 50%
match is hard for small operators, and that a sliding scale should
permit 80% for operating expenses under Section 5311.
Consistent with SAFETEA-LU's coordination goals, funds from other
than U.S. DOT governmental sources (including other Federal funds) can
be used provided that those funds are eligible to be used for
transportation purposes. Federal lands funds (including Indian
Reservation Roads funds) provided by the Federal Highway Administration
(FHWA) are not included in the prohibition on the use of U.S. DOT funds
as the local matching share. The statute does not allow for an 80%
Federal share for operating assistance. The maximum share for operating
assistance is 62.5% of the Federal share allowed to a State for capital
assistance under the sliding scale approved by FHWA. Thus the sliding
scale share for operating assistance ranges from 50.81% to 59.31%.
In addition to changes required by SAFETEA-LU, we propose to
require compliance with FTA's, ``Capital Leases'' regulations, 49 CFR
Part 639, for capital leases financed under the Section 5311 program.
When FTA Circular 9040.1E was published in October 1, 1998, FTA's
Capital Leases regulations had not been promulgated, but FTA's enabling
legislation enacted in 1998 expanded cost evaluation regulations to be
promulgated by FTA to all FTA assisted capital leases. Thus, FTA could
only advise States to treat FTA Capital Leases regulations as ``useful
guidelines.'' By December 10, 1998, FTA did promulgate its Capital
Lease regulations covering all FTA programs. Consequently, we propose
requiring compliance with those regulations. However, we are seeking
comments about the implications of doing so and are interested in how
those regulations would affect State leasing practices.
D. Chapter IV--Program Development
This chapter renames the former Chapter IV ``Program Management and
Administrative Requirements,'' which is now the title of Chapter VI of
the proposed circular. It makes minor updates to Chapter IV of the
current Circular 9040.1E, and adds a requirement that designated State
agencies provide annual Certifications and Assurances to FTA, which was
always assumed under the former circular but is now made explicit under
the proposed circular.
One Native American tribe asked that FTA ensure a fair distribution
of funds within a State that is inclusive of Indian communities. FTA
agrees. The revised circular notes that SAFETEA-LU created a separate
supplemental Tribal Transportation Program, but that language retained
in SAFETEA-LU requires that States must continue to include tribes in
the fair distribution of funds apportioned to States.
E. Chapter V--Locally Developed, Coordinated Public Transit--Human
Services Transportation Plan
This chapter replaces the former Chapter V ``Application
Instructions,'' which is attached as Appendix A to the proposed
circular. The new Chapter V describes the Locally Developed Coordinated
Public Transit-Human Services Transportation Plan required for three
other FTA programs and addresses the relationship to that planning
process for Section 5311 subrecipients. Although Section 5311 projects
are not specifically required by SAFETEA-LU to be derived from a local
coordinated plan, FTA states in Chapter V the expectation that Section
5311 and 5307 recipients would be included as essential partners or
participants in any coordinated planning activities.
One non-profit organization recommended that the planning
requirement for the three related coordinated formula programs be
integrated into and consistent with the metropolitan and State planning
processes. It requested clarification on how the coordinated plan will
be used to identify and integrate capital and operating needs funded
through the Sections 5307, 5309, and 5311 programs, including flexible
FHWA funding and fund transfers.
The proposed circulars for Sections 5310 (Elderly and Individuals
with Disabilities), 5316 (Job Access and Reverse Commute--JARC), and
5317 (New Freedom) programs will include detailed guidance on the
Locally Developed Coordinated Public Transit-Human Service
Transportation Plan and its relationship to the metropolitan and State
planning processes. Chapter V of this proposed circular states that
rural transit providers are expected to be participants in the local
planning process, and encourages the inclusion of rural intercity
mobility needs and
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intercity bus operators in the planning process in rural areas.
F. Chapter VI--Program Management and Administrative Requirements
This chapter retains the requirements that were in Chapter VI of
Circular 9040.1E, but adds a National Transit Database (NTD) reporting
requirement mandated by SAFETEA-LU.
One State commenter noted that the addition of the NTD requirement
for Section 5311 sub-recipients will facilitate data capture and
reporting for this program. Another agreed with FTA's stated intent to
keep the NTD requirements for Section 5311 similar to the pilot
voluntary State-based rural data module previously developed in
cooperation with various State DOTs.
One non-profit organization representing private operators
suggested that FTA convene a team of NTD consultants, rural public and
private operators, and human service providers to design a practical
and useful NTD questionnaire to meet the new reporting requirements.
One State DOT noted that the data requested in the current NTD Rural
General Public Transit Service form (RU-20) exceeds the data required
in SAFETEA-LU.
Another non-profit organization representing public transit
operators recognized that FTA now has several years of experience in
collecting data from the volunteer pilot program and suggested that
these data should form the base for any adjustments, noting the need
for additional precision in the definitions of the data that are
reported.
That same non-profit organization also suggested that FTA permit
direct reporting of data from rural recipients of Section 5311 funds to
the NTD, similar to the approach taken for urbanized and rural
operators in reporting drug and alcohol regulation compliance data. The
organization also suggested that the data be reported quarterly,
recognizing the on-going differences in Federal, State and local fiscal
years and to make the date consistent with whatever reporting period is
necessary. Finally, the organization noted that some operators receive
separate funding to serve both rural and urbanized areas, and that the
NTD must recognize those situations so that the benefits of both
funding sources are recognized.
FTA's revised program circular merely states the statutory
requirement and defers to annual NTD reporting instructions for
specific data required in a given year. Annual reporting instructions
can be found on the NTD Website (http://www.ntdprogram.com)
For FY 2006, FTA will use the existing rural data module for the
NTD reporting requirement. FTA will consider implementing a Web-based
data collection that mirrors other management information systems which
could allow States to import data from their subrecipients into the
existing NTD. However, due to timing and funding availability, FTA will
not be able to implement such a change in 2006.
To ease the burden of gathering the information for 2006 reporting,
FTA will send out a spreadsheet (in the format of the RU-20) so that
subrecipients can fill in the data and submit the information
electronically to the State. After the 2006 reports have been entered
into the NTD, this information will be automatically uploaded in
subsequent years. Another factor that will assist States in NTD
reporting is information for the RU-30 will be automatically populated
by data entered into the RU-20. Small urbanized transit agencies, that
receive both Section 5307 and 5311 funds, will continue to report the
5307 service data as previously established and report the rural
service data to the State DOT for entry into the NTD rural module. FTA
will ensure that their service is not double counted. FTA will
establish a workgroup that includes selected State DOTs to assist it in
the review of existing definitions to the reporting criteria to avoid
confusion in entering data. Administrative procedures already exist for
adjusting reporting deadlines, as requested by some States to
accommodate situations where local subrecipient fiscal years are not
the same as the State fiscal year.
With regard to the categories of data, FTA believes that the seven
data elements listed in SAFETEA-LU are illustrative and but not
exhaustive. However, when the rural module was developed in 2002, one
of the SAFETEA-LU data elements, fleet type, was not included. The
existing rural module will be updated to include fleet type data
elements at a later date. For FY 2006, all existing data elements
included on the NTD rural module must be reported by the State for each
individual subrecipient.
One State DOT requested that FTA simplify its Disadvantaged
Business Enterprise (DBE) reporting requirements. The State DOT also
recommended the elimination of the $250,000 program participation
threshold to reduce the paperwork burden on small rural operators. The
request for simplification is beyond the scope of this circular. The
$250,000 threshold is not an FTA requirement, but instead was
established by the U.S. DOT in its DBE regulation at 49 CFR part 26.
G. Chapter VII--State Management Plan
This chapter consists of Circular 9040.1E's Chapter XI, which has
been moved upward in the table of contents to be consistent with the
general format for FTA's revised circulars. This chapter contains no
significant revisions from the existing circular, except to require
documentation of any consultation process for intercity bus (see
below).
H. Chapter VIII--Intercity Bus
This chapter retains the same information from Chapter VII of
Circular 9040.1E and adds an enhanced consultative process requirement,
as mandated by SAFETEA-LU. While consultation between a State and
intercity bus operators regarding the adequacy of intercity bus service
within the State was encouraged under the previous Circular, SAFETEA-LU
now makes consultation mandatory for any State certifying that
intercity bus needs are adequately met.
Several commenters, including State DOTs and organizations
representing private bus operators, asked that the revised circular
establish specific guidelines that would define ``meaningful
consultation'' and establish a clear process to determine ``unmet
needs'' regarding the participation of local private operators in
intercity bus programs funded under Section 5311(f).
The proposed circular adopts the definition of ``consultation''
contained in the FTA/FHWA Joint Planning Regulations (49 CFR part 613/
23 CFR part 450) and establishes four minimum elements of the
consultation process. The circular also provides guidance to States for
designing effective processes. The proposed circular also requires that
any State certifying that needs are adequately met must have conducted
a Statewide assessment of intercity bus needs no more than four years
prior to the certification.
One organization representing private bus operators noted that
SAFETEA-LU did not define the term ``intercity bus service,'' and
requested that FTA (1) establish a proper working definition of that
term so that private operators understand what intercity bus service
may not be provided by a federally-funded transit agency; and (2) what
rural service, accessibility and capital projects may be properly
funded by FTA.
In its 9040.1E Circular, FTA defined intercity bus service as
regularly scheduled bus service for the general public that operates
with limited stops over fixed routes connecting two or
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more urban areas not in close proximity, that has the capacity for
transporting baggage carried by passengers, and that makes meaningful
connections with scheduled intercity bus service to more distant
points, if such service is available. The circular also provided
additional guidance regarding eligible activities and services. This
definition and guidance are retained in the proposed circular.
With regard to the request that the revised circular clarify and
define eligible rural and capital intercity bus activities, consistent
with 49 U.S.C. 5311(f), the revised circular retains the language from
Circular 9040.1E that specifies eligible intercity bus activities to
include ``planning and marketing for intercity bus transportation,
capital grants for intercity bus shelters, joint-use stops and depots,
operating grants through purchase-of-service agreements, user-side
subsidies and demonstration projects, and coordination of rural
connections between small transit operations and intercity bus
carriers.'' FTA notes that consistent with the statutory heading of
Section 5311, financial assistance under Section 5311(f) must be used
to support intercity bus service in rural and small urban areas.
Charter service is not eligible for FTA assistance.
I. Chapter IX--Rural Transportation Assistance Program (RTAP)
This chapter contains the renumbered Chapter VIII from Circular
9040.1E. Although it makes no significant substantive changes, it
reflects the new funding source for the RTAP program as defined by
SAFETEA-LU. Prior to SAFETEA-LU, the RTAP was funded from FTA's
research budget. Under SAFETEA-LU, the RTAP is now funded by a 2%
takedown from the Section 5311 program, with 85% going to the States
for local projects, and 15% for national projects to supplement State
projects, such as the maintenance of a national RTAP resource center.
This funding method ensures a predictable source of annual funding on a
year-to-year basis.
In their responses to the November 30th Apportionments Notice, a
handful of DOTs from less-populated western States supported raising
the per State minimum distribution of RTAP funds (floor), while a DOT
from a heavily-populated western State prefers no change be made to the
existing RTAP funding floor because ample funding provided by the new
low-density tier will provide for the needs of such low density (and
population) States. That State suggested retaining the $65,000 floor
for each State ($10,000 for territories), with the balance allocated
based on the non-urbanized population in the 2000 Census.
An organization representing rural transit agencies noted that
training in completing rural data reporting should be a priority for
the RTAP, and made available at annual and bi-annual professional
meetings. The organization also recommended that the minimum
apportionment per state be increased for States such as North Dakota
which serve many rural operators, over States like Alaska, Hawaii and
Rhode Island which, according to the Community Transportation
Association of America (CTAA) database, serve only 1 to 3 operators. In
addition, one commenter asked that FTA to direct some RTAP funds to a
Tribal Transportation Assistance Program.
For FY 2006 RTAP allocations, FTA used the existing administrative
formula with a floor of $65,000 ($10,000 for territories) and the
balance allocated based on the nonurbanized population in the 2000
Census. Given the lack of substantial support for raising the floor in
the comments to the November 30 Notice, in the revised circular, FTA is
not currently proposing to change the formula for allocating State RTAP
funds.
Uses for national RTAP program funds are determined by FTA in
consultation with a national RTAP program review board composed of
State RTAP program managers and rural transit providers. Training to
support data collection and support for tribal transit are among the
priorities FTA is considering, outside the scope of this circular
revision.
J. Chapter X--Other Provisions
This chapter combines Circular 9040.1E's Chapter IX ``Civil Rights
Requirements'' and Chapter X ``Other Provisions.'' While it
incorporates the same text from those two existing chapters, albeit
renumbered and reorganized, the revised chapter expands the public
hearing and involvement requirement for capital project planning to
conform with SAFETEA-LU. It adds standardized language on Real Property
Acquisition and Relocation Assistance and it relieves the pre-award and
post-deliver audit review requirement for procurements of 20 vehicles
or less. It amends the Buy America provisions to reflect SAFETEA-LU
changes regarding post-award requests and the right of an adversely
affected party to seek FTA review, and adds a new section on safety and
security.
Several State DOTs asked that the revised circular provide better
guidance regarding FTA's policy on charter service, particularly for
Section 5311 subrecipients that provide rural demand-responsive
service. They noted particular difficulties in interpreting and
applying the charter service prohibition to demand-responsive
providers, since all of their service is in response to specific
customer requests, and therefore can easily resemble charter service.
It is also difficult for demand response operators to provide an annual
event ``route'' as part of their public transportation services because
they do not publish route schedules.
FTA believes that it would be improper to provide additional
charter service guidance at this time. Consistent with Section 3032(d)
of SAFETEA-LU, FTA has initiated a negotiated rulemaking seeking
comment on FTA's Charter Bus regulation. FTA sponsored Charter Bus
Negotiated Rulemaking Advisory Committee (CBNRAC) meetings beginning in
May 2006, and the CBNRAC will develop, through negotiated rulemaking
procedures, recommendations for improving the regulation regarding the
prohibition of FTA grant recipients from providing charter bus service.
The CBNRAC will prepare a report, consisting of consensus
recommendations for the regulatory text of a draft notice of proposed
rulemaking (NPRM). This report may also include suggestions for the
NPRM preamble, regulatory evaluation, or other supplemental documents.
Interested parties may comment on the Charter Service NPRM once it is
published in the Federal Register.
K. Appendices
Exhibits A-G of Circular 9040.1E have been relabeled and
reorganized as Appendices A-H of the revised circular. The new Appendix
A contains revised application instructions that were formerly
contained in Chapter V of Circular 9040.1E. Appendix B retains the
Sample Selection of Projects that was formerly Exhibit A, but it has
been amended to recognize the transfer of funds from the Section 5310,
5316, and 5317 programs. Appendix C retains Section 5311 budget
information from the former Exhibit B, adding new codes for the Section
5310, 5316, and 5317 programs. Appendix D is new, reflecting the use of
flexible funds under SAFETEA-LU. The next three appendices have been
retained without significant change: Appendix E retains the sample
intercity bus certification from the former Exhibit E with the addition
of evidence of consultation; Appendix F reserves the Section 5333(b)
labor protection warranty from the former Exhibit F; and Appendix G
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retains the Capital Cost of Contracting percentage breakdowns from the
former Exhibit G. The revised circular adds a new Appendix H, listing
contact information for FTA's Regional Offices.
Issued in Washington, DC, this 24th day of July, 2006.
Sandra K. Bushue,
Deputy Administrator.
[FR Doc. E6-12137 Filed 7-28-06; 8:45 am]
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