[Federal Register: April 29, 2009 (Volume 74, Number 81)]
[Notices]
[Page 19624-19627]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29ap09-153]
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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.
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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:
http://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]
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