[Title 49 CFR ]
[Code of Federal Regulations (annual edition) - October 1, 2006 Edition]
[From the U.S. Government Publishing Office]
[[Page i]]
49
Parts 600 to 999
Revised as of October 1, 2006
Transportation
________________________
Containing a codification of documents of general
applicability and future effect
As of October 1, 2006
With Ancillaries
Published by
Office of the Federal Register
National Archives and Records
Administration
A Special Edition of the Federal Register
[[Page ii]]
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[[Page iii]]
Table of Contents
Page
Explanation................................................. v
Title 49:
Subtitle B--Other Regulations Relating to Transportation
(Continued)
Chapter VI--Federal Transit Administration,
Department of Transportation 5
Chapter VII--National Railroad Passenger Corporation
(AMTRAK) 101
Chapter VIII--National Transportation Safety Board 117
Finding Aids:
Table of CFR Titles and Chapters........................ 207
Alphabetical List of Agencies Appearing in the CFR...... 225
List of CFR Sections Affected........................... 235
[[Page iv]]
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Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 49 CFR 601.1 refers
to title 49, part 601,
section 1.
----------------------------
[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
regulation. Each title is divided into chapters which usually bear the
name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
volume.
LEGAL STATUS
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HOW TO USE THE CODE OF FEDERAL REGULATIONS
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collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
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Provisions that become obsolete before the revision date stated on
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[[Page vii]]
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Raymond A. Mosley,
Director,
Office of the Federal Register.
October 1, 2006.
[[Page ix]]
THIS TITLE
Title 49--Transportation is composed of nine volumes. The parts in
these volumes are arranged in the following order: Parts 1-99, parts
100-185, parts 186-199, parts 200-299, parts 300-399, parts 400-599,
parts 600-999, parts 1000-1199, part 1200 to End. The first volume
(parts 1-99) contains current regulations issued under subtitle A--
Office of the Secretary of Transportation; the second volume (parts 100-
185) and the third volume (parts 186-199) contain the current
regulations issued under chapter I--Pipeline and Hazardous Materials
Safety Administration (DOT); the fourth volume (parts 200-299) contains
the current regulations issued under chapter II--Federal Railroad
Administration (DOT); the fifth volume (parts 300-399) contains the
current regulations issued under chapter III--Federal Motor Carrier
Safety Administration (DOT); the sixth volume (parts 400-599) contains
the current regulations issued under chapter IV--Coast Guard (DHS),
chapter V--National Highway Traffic Safety Administration (DOT); the
seventh volume (parts 600-999) contains the current regulations issued
under chapter VI--Federal Transit Administration (DOT), chapter VII--
National Railroad Passenger Corporation (AMTRAK), and chapter VIII--
National Transportation Safety Board; the eighth volume (parts 1000-
1199) contains the current regulations issued under chapter X--Surface
Transportation Board and the ninth volume (part 1200 to End) contains
the current regulations issued under chapter X--Surface Transportation
Board, chapter XI--Research and Innovative Technology Administration,
and chapter XII--Transportation Security Administration, Department of
Transportation. The contents of these volumes represent all current
regulations codified under this title of the CFR as of October 1, 2006.
In the volume containing parts 100-185, see Sec. 172.101 for the
Hazardous Materials Table. The Federal Motor Vehicle Safety Standards
appear in part 571.
Redesignation tables for chapter III--Federal Motor Carrier Safety
Administration, Department of Transportation and chapter XII--
Transportation Security Administration, Department of Transportation
appear in the Finding Aids section of the fifth and ninth volumes.
For this volume, Moja N. Mwaniki and Ruth Green were Chief Editors.
The Code of Federal Regulations publication program is under the
direction of Frances D. McDonald, assisted by Kenneth R. Payne.
[[Page 1]]
TITLE 49--TRANSPORTATION
(This book contains parts 600 to 999)
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Part
SUBTITLE B--Other Regulations Relating to Transportation (Continued)
chapter vi--Federal Transit Administration, Department of
Transportation............................................ 601
chapter vii--National Railroad Passenger Corporation
(AMTRAK).................................................. 700
chapter viii--National Transportation Safety Board.......... 800
[[Page 3]]
Subtitle B--Other Regulations Relating to Transportation (Continued)
[[Page 5]]
CHAPTER VI--FEDERAL TRANSIT ADMINISTRATION, DEPARTMENT OF TRANSPORTATION
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Part Page
601 Organization, functions, and procedures..... 7
604 Charter service............................. 13
605 School bus operations....................... 21
609 Transportation for elderly and handicapped
persons................................. 29
611 Major capital investment projects........... 31
613 Planning assistance and standards........... 39
614 Transportation infrastructure management.... 39
622 Environmental impact and related procedures. 40
624 Clean fuels formula grant program........... 41
630 Uniform system of accounts and records and
reporting system........................ 47
633 Project management oversight................ 52
639 Capital leases.............................. 55
640 Credit assistance for surface transportation
projects................................ 59
655 Prevention of alcohol misuse and prohibited
drug use in transit operations.......... 59
659 Rail fixed guideway systems; State safety
oversight............................... 73
661 Buy America requirements--Surface
Transportation Assistance Act of 1982,
as amended.............................. 82
663 Pre-award and post-delivery audits of
rolling stock purchases................. 91
665 Bus testing................................. 95
[[Page 7]]
PART 601_ORGANIZATION, FUNCTIONS, AND PROCEDURES--Table of Contents
Subpart A_General Provisions
Sec.
601.1 Purpose.
601.2 Organization of the administration.
601.3 General responsibilities.
601.4 Responsibilities of the Administrator.
Subpart B_Public Availability of Information
601.10 Sources of information.
Subpart C_Rulemaking Procedures
601.20 Applicability.
601.21 Definitions.
601.22 General.
601.23 Initiation of rulemaking.
601.24 Contents of notices of proposed rulemaking.
601.25 Participation by interested persons.
601.26 Petitions for extension of time to comment.
601.27 Contents of written comments.
601.28 Consideration of comments received.
601.29 Additional rulemaking proceedings.
601.30 Hearings.
601.31 Adoption of final rules.
601.32 Petitions for rulemaking or exemptions.
601.33 Processing of petition.
601.34 Petitions for reconsideration.
601.35 Proceedings on petitions for reconsideration.
601.36 Procedures for direct final rulemaking.
Authority: 5 U.S.C. Sec. 552; 49 U.S.C. 5334; 49 U.S.C. 1657, 1659;
Reorganization Plan No. 2 of 1968 (82 Stat. 1369); 49 CFR 1.51.
Source: 70 FR 67318, Nov. 4, 2005, unless otherwise noted.
Subpart A_General Provisions
Sec. 601.1 Purpose.
This part describes the organization of the Federal Transit
Administration (``FTA''), an operating administration within the U.S.
Department of Transportation. This part also describes general
responsibilities of the various offices of which FTA is comprised. In
addition, this part describes the sources and locations of available FTA
program information, and provides information regarding FTA's rulemaking
procedures.
Sec. 601.2 Organization of the administration.
(a) The headquarters organization of FTA is comprised of eight
principal offices which function under the overall direction of the
Federal Transit Administrator (``the Administrator'') and Deputy
Administrator. These offices are:
(1) Office of Administration.
(2) Office of Budget and Policy.
(3) Office of Chief Counsel.
(4) Office of Civil Rights.
(5) Office of Communications and Congressional Affairs.
(6) Office of Planning and Environment.
(7) Office of Program Management.
(8) Office of Research, Demonstration and Innovation.
(b) FTA has ten regional offices, each of which function under the
overall direction of the Administrator and Deputy Administrator, and
under the general direction of a Regional Administrator. In addition,
FTA has established a Lower Manhattan Recovery Office, which is under
the general direction of the Director for this office.
------------------------------------------------------------------------
Region/States Office/address Telephone No.
------------------------------------------------------------------------
I. Connecticut, Maine, FTA Regional (617) 494-2055
Massachusetts, New Hampshire, Administrator,
Rhode Island, and Vermont. Kendall Square,
55 Broadway,
Suite 920,
Cambridge, MA
02142-1093.
II. New York, New Jersey, and FTA Regional (212) 668-2170
U.S. Virgin Islands. Administrator,
One Bowling
Green, Room 429,
New York, NY
10014-1415.
III. Delaware, District of FTA Regional (215) 656-7100
Columbia, Maryland, Administrator,
Pennsylvania, Virginia, and 1760 Market
West Virginia. Street, Suite
500,
Philadelphia, PA
19103-4124.
IV. Alabama, Florida, Georgia, FTA Regional (404) 562-3500
Kentucky, Mississippi, North Administrator,
Carolina, Puerto Rico, South Atlanta Federal
Carolina, and Tennessee. Center, Suite
17T50, 61 Forsyth
Street, SW.,
Atlanta, GA 30303.
V. Illinois, Indiana, Minnesota, FTA Regional (312) 353-2789
Michigan, Ohio, and Wisconsin. Administrator,
200 West Adams
Street, Suite
320, Chicago, IL
60606.
VI. Arkansas, Louisiana, New FTA Regional (817) 978-0550
Mexico, Oklahoma, and Texas. Administrator,
819 Taylor
Street, Room
8A36, Fort Worth,
TX 76102.
[[Page 8]]
VII. Iowa, Kansas, Missouri, and FTA Regional (816) 329-3920
Nebraska. Administrator,
901 Locust
Street, Suite
404, Kansas City,
MO 64106.
VIII. Colorado, Montana, North FTA Regional (720) 963-3300
Dakota, South Dakota, Utah, and Administrator,
Wyoming. Dept. of
Transportation,
FTA, 12300 W.
Dakota Ave.,
Suite 310,
Lakewood, CO
80228-2583.
IX. Arizona, California, Hawaii, FTA Regional (415) 744-3133
Nevada, Guam, American Samoa, Administrator,
and Northern Mariana Islands. 201 Mission
Street, Suite
310, San
Francisco, CA
94105.
X. Alaska, Idaho, Oregon, and FTA Regional (206) 220-7954
Washington. Administrator,
Jackson Federal
Building, 915
Second Avenue,
Suite 3142,
Seattle, WA 98174-
1002.
Lower Manhattan Recovery Office. FTA LMRO Director, (212) 668-1770
One Bowling
Green, Room 436,
New York, NY
10004.
------------------------------------------------------------------------
Sec. 601.3 General responsibilities.
The general responsibilities of each of the offices which comprise
the headquarters organization of FTA are:
(a) Office of Administration. Directed by an Associate Administrator
for Administration, this office develops and administers comprehensive
programs to meet FTA's resource management and administrative support
requirements in the following areas: Organization and management
planning, information resources management, human resources, contracting
and procurement, and administrative services.
(b) Office of Budget and Policy. Directed by an Associate
Administrator for Budget and Policy, this office is responsible for
policy development and performance measurement, strategic and program
planning, program evaluation, budgeting, and accounting. The office
provides policy direction on legislative proposals and coordinates the
development of regulations. The office formulates and justifies FTA
budgets within the Department of Transportation, to the Office of
Management and Budget, and Congress. The office establishes
apportionments and allotments for program and administrative funds,
ensures that all funds are expended in accordance with Administration
and congressional intent, and prepares and coordinates statutory reports
to Congress. The office coordinates with and supports the Department of
Transportation Chief Financial Officer on all FTA accounting and
financial management matters. This office also serves as the audit
liaison in responding to the Office of the Inspector General and the
Government Accountability Office.
(c) Office of Chief Counsel. Directed by a Chief Counsel, this
office provides legal advice and support to the Administrator and FTA
management. The office is responsible for reviewing development and
management of FTA-sponsored projects; representing the Administration
before civil courts and administrative agencies; drafting and reviewing
legislation and regulations to implement the Administration's programs;
and working to ensure that the agency upholds the highest ethical
standards. The office coordinates with and supports the U.S. Department
of Transportation's General Counsel on FTA legal matters.
(d) The Office of Civil Rights. Directed by a Director for Civil
Rights, this office ensures full implementation of civil rights and
equal opportunity initiatives by all recipients of FTA assistance, and
ensures nondiscrimination in the receipt of FTA benefits, employment,
and business opportunities. The office advises and assists the
Administrator and other FTA officials in ensuring compliance with
applicable civil rights regulations, statutes and directives, including
but not limited to the Americans with Disabilities Act of 1990 (ADA),
the Civil Rights Act of 1964, Disadvantaged Business Enterprise (DBE)
participation, and Equal Employment Opportunity, within FTA and in the
conduct of Federally-assisted public transportation projects and
programs. The office monitors the implementation of and compliance with
civil rights requirements, investigates complaints, conducts compliance
reviews, and provides technical assistance to recipients of FTA
assistance and members of the public.
[[Page 9]]
(e) Office of Communications and Congressional Affairs. Directed by
an Associate Administrator for Communications and Congressional Affairs,
this office is the agency's lead office for media relations, public
affairs, and Congressional relations, providing quick response support
to the agency, the public, and Members of Congress on a daily basis. The
office distributes information about FTA programs and policies to the
public, the transit industry, and other interested parties through a
variety of media. This office also coordinates the Administrator's
public appearances and is responsible for managing correspondence and
other information directed to and issued by the Administrator and Deputy
Administrator.
(f) Office of Planning and Environment. Directed by an Associate
Administrator for Planning and Development, this office administers a
national program of planning assistance that provides funding, guidance,
and technical support to State and local transportation agencies. In
partnership with the Federal Highway Administration (FHWA), this office
oversees a national program of planning assistance and certification of
metropolitan and statewide planning organizations, implemented by FTA
Regional Offices and FHWA Divisional Offices. The office provides
national guidance and technical support in emphasis areas including
planning capacity building, financial planning, transit oriented
development, joint development, project cost estimation, travel demand
forecasting, and other technical areas. This office also oversees the
Federal environmental review process as it applies to transit projects
throughout the country, including implementation of the National
Environmental Policy Act (NEPA), the Clean Air Act, and related laws and
regulations. The office provides national guidance and oversight of
planning and project development for proposed major transit capital
fixed guideway projects, commonly referred to as the New Starts program.
In addition, this office is responsible for the evaluation and rating of
proposed projects based on a set of statutory criteria, and applies
these ratings as input to the Annual New Starts Report and funding
recommendations submitted to Congress, as well as for FTA approval
required for projects to advance into preliminary engineering, final
design, and full funding grant agreements.
(g) Office of Program Management. Directed by an Associate
Administrator for Program Management, this office administers a national
program of capital and operating assistance by managing financial and
technical resources and by directing program implementation. The office
coordinates all grantee directed guidance, in the form of circulars and
other communications, develops and distributes procedures and program
guidance to assist the field staff in grant program administration and
fosters responsible stewardship of Federal transit resources by
facilitating and assuring consistent grant development and
implementation nationwide (Statutory, Formula, Discretionary and
Earmarks). This office manages the oversight program for agency formula
grant programs and provides national expertise and direction in the
areas of capital construction, rolling stock, and risk assessment
techniques. It also assists the transit industry and State and local
authorities in providing high levels of safety and security for transit
passengers and employees through technical assistance, training, public
awareness, drug and alcohol testing and state safety oversight.
(h) Office of Research, Demonstration, and Innovation. Directed by
an Associate Administrator for Research, Demonstration and Innovation,
this office provides transit industry leadership in delivery of
solutions that improve public transportation. The office undertakes
research, development, and demonstration projects that help to increase
ridership; improve capital and operating efficiencies; enhance safety
and emergency preparedness; and better protect the environment and
promote energy independence. The office leads FTA programmatic efforts
under the National Research Programs (49 U.S.C. 5314).
Sec. 601.4 Responsibilities of the Administrator.
The Administrator is responsible for the planning, direction and
control of
[[Page 10]]
the activities of FTA and has authority to approve Federal transit
grants, loans, and contracts. The Deputy Administrator is the ``first
assistant'' for purposes of the Federal Vacancies Reform Act of 1998
(Pub. L. 105-277) and shall, in the event of the absence or disability
of the Administrator, serve as the Acting Administrator, subject to the
limitations in that Act. In the event of the absence or disability of
both the Administrator and the Deputy Administrator, officials
designated by the agency's internal order on succession shall serve as
Acting Deputy Administrator and shall perform the duties of the
Administrator, except for any non-delegable statutory and/or regulatory
duties.
Subpart B_Public Availability of Information
Sec. 601.10 Sources of information.
(a) FTA guidance documents. (1) Circulars and other guidance/policy
information are available on FTA's Web site: http://www.fta.dot.gov.
(2) Single copies of any guidance document may be obtained without
charge by calling FTA's Administrative Services Help Desk, at (202) 366-
4865.
(3) Single copies of any guidance document may also be obtained
without charge upon written request to the Associate Administrator for
Administration, Federal Transit Administration, 400 7th Street SW., Room
9107, Washington, DC, 20590, or to any FTA regional office listed in
Sec. 601.2.
(b) DOT Docket Management System. Unless a particular document says
otherwise, the following rulemaking documents in proceedings started
after February 1, 1997, are available for public review and copying at
the Department of Transportation's Docket Management System, Room PL
401, 400 7th Street SW., Washington, DC 20590, or for review and
downloading through the Internet at http://dms.dot.gov:
(1) Advance notices of proposed rulemaking;
(2) Notices of proposed rulemaking;
(3) Comments received in response to notices;
(4) Petitions for rulemaking and reconsideration;
(5) Denials of petitions for rulemaking and reconsideration; and
(6) Final rules.
(c) Any person may examine docketed material, at any time during
regular business hours after the docket is established, and may obtain a
copy of such material upon payment of a fee, except material ordered
withheld from the public under section 552(b) of Title 5 of the United
States Code.
(d) Any person seeking documents not described above may submit a
request under the Freedom of Information Act (FOIA) by following the
procedures outlined in 49 CFR Part 7.
Subpart C_Rulemaking Procedures
Sec. 601.20 Applicability.
This part prescribes rulemaking procedures that apply to the
issuance, amendment and revocation of rules under an Act.
Sec. 601.21 Definitions.
Act means statutes granting the Secretary authority to regulate
public transportation.
Administrator means the Federal Transit Administrator, the Deputy
Administrator or the delegate of either of them.
Sec. 601.22 General.
(a) Unless the Administrator, for good cause, finds a notice is
impractical, unnecessary, or contrary to the public interest, and
incorporates such a finding and a brief statement of the reasons for it
in the rule, a notice of proposed rulemaking must be issued, and
interested persons are invited to participate in the rulemaking
proceedings involving rules under an Act.
(b) For rules for which the Administrator determines that notice is
unnecessary because no adverse public comment is anticipated, the direct
final rulemaking procedure described in Sec. 601.36 of this subpart may
be followed.
Sec. 601.23 Initiation of rulemaking.
The Administrator initiates rulemaking on his/her own motion.
However, in so doing, he/she may, in his/her
[[Page 11]]
discretion, consider the recommendations of his/her staff or other
agencies of the United States or of other interested persons.
Sec. 601.24 Contents of notices of proposed rulemaking.
(a) Each notice of proposed rulemaking is published in the Federal
Register, unless all persons subject to it are named and are personally
served with a copy of it.
(b) Each notice, whether published in the Federal Register or
personally served, includes:
(1) A statement of the time, place, and nature of the proposed
rulemaking proceeding;
(2) A reference to the authority under which it is issued;
(3) A description of the subjects and issues involved or the
substance and terms of the proposed rule;
(4) A statement of the time within which written comments must be
submitted; and
(5) A statement of how and to what extent interested persons may
participate in the proceeding.
Sec. 601.25 Participation by interested persons.
(a) Any interested person may participate in rulemaking proceedings
by submitting comments in writing containing information, views, or
arguments.
(b) In his/her discretion, the Administrator may invite any
interested person to participate in the rulemaking procedures described
in Sec. 601.29.
Sec. 601.26 Petitions for extension of time to comment.
A petition for extension of the time to submit comments must be
received not later than three (3) days before expiration of the time
stated in the notice. The filing of the petition does not automatically
extend the time for petitioner's comments. Such a petition is granted
only if the petitioner shows good cause for the extension, and if the
extension is consistent with the public interest. If an extension is
granted, it is granted to all persons, and it is published in the
Federal Register.
Sec. 601.27 Contents of written comments.
All written comments must be in English and submitted in five (5)
legible copies, unless the number of copies is specified in the notice.
Any interested person must submit as part of his/her written comments
all material that he/she considers relevant to any statement of fact
made by him/her. Incorporation of material by reference is to be
avoided. However, if such incorporation is necessary, the incorporated
material shall be identified with respect to document and page.
Sec. 601.28 Consideration of comments received.
All timely comments are considered before final action is taken on a
rulemaking proposal. Late filed comments may be considered so far as
practicable.
Sec. 601.29 Additional rulemaking proceedings.
The Administrator may initiate any further rulemaking proceedings
that he/she finds necessary or desirable. For example, interested
persons may be invited to make oral arguments, to participate in
conferences between the Administrator or his/her representative at which
minutes of the conference are kept, to appear at informal hearings
presided over by officials designated by the Administrator at which a
transcript or minutes are kept, or participate in any other proceeding
to assure informed administrative action and to protect the public
interest.
Sec. 601.30 Hearings.
(a) Sections 556 and 557 of Title 5, United States Code, do not
apply to hearings held under this part. Unless otherwise specified,
hearings held under this part are informal, non-adversary, fact-finding
procedures at which there are no formal pleadings or adverse parties.
Any rule issued in a case in which an informal hearing is held is not
necessarily based exclusively on the record of the hearing.
(b) The Administrator designates a representative to conduct any
hearing held under this part. The Chief Counsel of the Federal Transit
Administration designates a member of his/her staff to serve as legal
officer at the hearing.
[[Page 12]]
Sec. 601.31 Adoption of final rules.
Final rules are prepared by representatives of the office concerned
and the Office of Chief Counsel. The rule is then submitted to the
Administrator for his/her consideration. If the Administrator adopts the
rule, it is published in the Federal Register, unless all persons
subject to it are named and are personally served a copy of it.
Sec. 601.32 Petitions for rulemaking or exemptions.
(a) Any interested person may petition the Administrator to
establish, amend, or repeal a rule, or for a permanent or temporary
exemption from FTA rules as allowed by law.
(b) Each petition filed under this section must:
(1) Be submitted in duplicate to the Administrator, Federal Transit
Administration, 400 Seventh Street, SW., Washington, DC 20590;
(2) State the name, street and mailing addresses, and telephone
number of the petitioner; if the petitioner is not an individual, state
the name, street and mailing addresses and telephone number of an
individual designated as an agent of the petitioner for all purposes
related to the petition;
(3) Set forth the text or substance of the rule or amendment
proposed, or of the rule from which the exemption is sought, or specify
the rule that the petitioner seeks to have repealed, as the case may be;
(4) Explain the interest of the petitioner in the action requested,
including, in the case of a petition for an exemption, the nature and
extent of the relief sought and a description of the persons to be
covered by the exemption;
(5) Contain any information and arguments available to the
petitioner to support the action sought; and
(6) In the case of a petition for exemption, except in cases in
which good cause is shown, the petition must be submitted at least 120
days before the requested effective date of the exemption.
Sec. 601.33 Processing of petitions.
(a) Each petition received under Sec. 601.32 of this part is
referred to the head of the office responsible for the subject matter of
that petition. Unless the Administrator otherwise specifies, no public
hearing, argument or other proceeding is held directly on a petition
before its disposition under this section.
(b) Grants. If the Administrator determines the petition contains
adequate justification, he/she initiates rulemaking action under this
Subpart C or grants the exemption, as the case may be.
(c) Denials. If the Administrator determines the petition does not
justify rulemaking or granting the exemption, he/she denies the
petition.
(d) Notification. Whenever the Administrator determines that a
petition should be granted or denied, the office concerned and the
Office of Chief Counsel prepare a notice of that grant or denial for
issuance to the petitioner, and the Administrator issues it to the
petitioner.
Sec. 601.34 Petitions for reconsideration.
(a) Any interested person may petition the Administrator for
reconsideration of a final rule issued under this part. The petition
must be in English and submitted in duplicate to the Administrator,
Federal Transit Administration, 400 Seventh Street, SW., Washington, DC,
20590, and received not later than thirty (30) days after publication of
the final rule in the Federal Register. Petitions filed after that time
will be considered as petitions filed under Sec. 601.32. The petition
must contain a brief statement of the complaint and an explanation as to
why compliance with the final rule is not practicable, is unreasonable,
or is not in the public interest.
(b) If the petitioner requests the consideration of additional
facts, he/she must state the reason the facts were not presented to the
Administrator within the prescribed comment period of the rulemaking.
(c) The Administrator does not consider repetitious petitions.
(d) Unless the Administrator otherwise provides, the filing of a
petition under this section does not stay the effectiveness of the final
rule.
[[Page 13]]
Sec. 601.35 Proceedings on petitions for reconsideration.
The Administrator may grant or deny, in whole or in part, any
petition for reconsideration without further proceedings. In the event
he/she determines to reconsider any rule, he/she may issue a final
decision on reconsideration without further proceedings, or he/she may
provide such opportunity to submit comment or information and data as
he/she deems appropriate. Whenever the Administrator determines that a
petition should be granted or denied, he/she prepares a notice of the
grant or denial of a petition for reconsideration and issues it to the
petitioner. The Administrator may consolidate petitions relating to the
same rule.
Sec. 601.36 Procedures for direct final rulemaking.
(a) Rules the Administrator judges to be non-controversial and
unlikely to result in adverse public comment may be published as direct
final rules. These include non-controversial rules that:
(1) Affect internal procedures of FTA, such as filing requirements
and rules governing inspection and copying of documents;
(2) Are non-substantive clarifications or corrections to existing
rules;
(3) Update existing forms;
(4) Make minor changes in the substantive rule regarding statistics
and reporting requirements;
(5) Make changes to the rule implementing the Privacy Act; and
(6) Adopt technical standards set by outside organizations.
(b) The Federal Register document will state that any adverse
comment or notice of intent to submit adverse comment must be received
in writing by FTA within the specified time after the date of
publication and that, if no written adverse comment or written notice of
intent to submit adverse comment is received, the rule will become
effective a specified number of days after the date of publication.
(c) If no written adverse comment or written notice of intent to
submit adverse comment is received by FTA within the specified time of
publication in the Federal Register, FTA will publish a notice in the
Federal Register indicating that no adverse comment was received and
confirming that the rule will become effective on the date that was
indicated in the direct final rule.
(d) If FTA receives any written adverse comment or written notice of
intent to submit adverse comment within the specified time of
publication in the Federal Register, a notice withdrawing the direct
final rule will be published in the final rule section of the Federal
Register and, if FTA decides a rulemaking is warranted, a notice of
proposed rulemaking will be published in the proposed rule section of
the Federal Register.
(e) An ``adverse'' comment for the purpose of this subpart means any
comment that FTA determines is critical of the rule, suggests that the
rule should not be adopted, or suggests a change that should be made in
the rule. A comment suggesting that the policy or requirements of the
rule should or should not also be extended to other Departmental
programs outside the scope of the rule is not adverse.
PART 604_CHARTER SERVICE--Table of Contents
Subpart A_General
Sec.
604.1 Purpose.
604.3 Applicability.
604.5 Definitions.
604.7 Charter agreement.
604.9 Charter service.
604.11 Procedures for determining if there are any willing and able
private charter operators.
604.13 Reviewing evidence submitted by private charter operators.
Subpart B_Complaint Process
604.15 Filing a complaint.
604.17 Remedies.
604.19 Appeals.
604.21 Judicial review.
Appendix A to Part 604
Authority: 49 U.S.C. 5323(d); 23 U.S.C. 103(e)(4); 142(a); and
142(c); and 49 CFR 1.51.
Source: 52 FR 11933, Apr. 13, 1987, unless otherwise noted.
[[Page 14]]
Subpart A_General
Sec. 604.1 Purpose.
The purpose of this part is to implement section 3(f) and section
12(c)(6) of the FT Act.
Sec. 604.3 Applicability.
This part applies to all applicants and recipients of Federal
financial assistance under:
(a) Sections 3 (excluding section 16(b)(2)), 5, 9A, 9 or 18 of the
FT Act; or
(b) Sections 103(e)(4), 142(a), or 142(c) of Title 23 United States
Code which permit the use of Federal-Aid Highway funds to purchase
buses.
Sec. 604.5 Definitions.
(a) All definitions in the FT Act (at 49 U.S.C. 1608) are applicable
to this part, except as may otherwise be provided in this section.
(b) The Acts means the FT Act and those parts of Title 23 United
States Code, 23 U.S.C. 103(e)(4), 142(a) and 142(c), that provide for
assistance to public bodies for purchasing buses.
(c) Administrator means the Administrator of FTA or his or her
designee.
(d) Categories of Revenue Vehicle means bus or van.
(e) Charter Service means transportation using buses or vans, or
facilities funded under the Acts of a group of persons who pursuant to a
common purpose, under a single contract, at a fixed charge (in
accordance with the carrier's tariff) for the vehicle or service, have
acquired the exclusive use of the vehicle or service to travel together
under an itinerary either specified in advance or modified after having
left the place of origin. This definition includes the incidental use of
FTA funded equipment for the exclusive transportation of school
students, personnel, and equipment.
(f) Chief Counsel means the Chief Counsel of FTA.
(g) Days means calendar days in subpart A and Federal working days
in subpart B.
(h) Designated Official means the applicant's and recipient's
employee authorized to file applications on behalf of the applicant or
to enter into agreements on behalf of the recipient.
(i) Incidental Charter Service means charter service which does not:
(1) interfere with or detract from the provision of the mass
transportation service for which the equipment or facilities were funded
under the Acts; or (2) does not shorten the mass transportation life of
the equipment or facilities.
(j) Interested Party means an individual, partnership, corporation,
association, or public or private organization that has a financial
interest which is adversely affected by the act or acts of a recipient
regarding charter service.
(k) Non-urbanized area means an area with a population of less than
50,000 people.
(l) Recipient means one that has received or is receiving Federal
financial assistance under the Acts. The term includes subrecipients of
a recipient, subrecipients in FTA's State administered programs, public
bodies that receive assistance that will be passed on to another public
or quasi-public body, any operator for a recipient, whether publicly or
privately owned, and may include lessees of federally assisted buses and
other equipment. For any FTA State administered program, the State is
the recipient.
(m) State Administered Program means any FTA grant program in which
the State is the recipient of funds, passes the funds to subrecipients,
and administers the program for FTA.
(n) FT Act means the Federal Mass Transit Act of 1964, as amended,
49 U.S.C. 1601 et seq.
(o) FTA means the Federal Transit Administration.
(p) Willing and able means having the desire, having the physical
capability of providing the categories of revenue vehicles requested,
and possessing the legal authority, including the necessary safety
certifications, licenses and other legal prerequisites, to provide
charter service in the area in which it is proposed to be provided.
Sec. 604.7 Charter agreement.
(a) Every applicant for financial assistance under sections 3
(excluding section 16(b)(2)), 5, 9A, 9 or 18 of the FT Act, or under 23
U.S.C. 103(e)(4), 142(a) or 142(c), must include two copies of a
[[Page 15]]
charter bus agreement signed by the applicant's designated official with
each grant application submitted to FTA after May 13, 1987. For FTA's
State administered programs, the State is the applicant.
(b) The text of the agreement must be as follows:
I, (name), (title), agree that (name of applicant) and all
recipients through (name of applicant) will provide charter service that
uses equipment or facilities provided under the Federal Mass Transit Act
of 1964, as amended (49 U.S.C. 1601 et seq.) or under 23 U.S.C.
103(e)(4), 142(a) or 142(c) (the Acts) only to the extent that there are
no private charter service operators willing and able to provide the
charter service that (name of applicant) and all recipients through
(name of applicant) desire to provide unless one or more of the
exceptions in 49 CFR 604.9 applies.
I further agree that (name of applicant) and all recipients through
(name of applicant) will comply with the provisions in 49 CFR part 604
before they provide any charter service using equipment or facilities
provided under the Acts, that the requirements of 49 CFR part 604 will
apply to any such charter service that is provided, and that the
definitions in 49 CFR part 604 apply to this agreement.
Applicant
[fxsp0]_________________________________________________________________
Name
[fxsp0]_________________________________________________________________
Title
[fxsp0]_________________________________________________________________
Date
Federal Transit Administration
[fxsp0]_________________________________________________________________
Name
[fxsp0]_________________________________________________________________
Title
[fxsp0]_________________________________________________________________
Date
(c) If FTA approves the grant application, the approving official
shall sign the agreement when the grant application is approved. One
copy of the signed agreement will be retained by FTA and the other copy
will be returned to the recipient, formerly the applicant.
(d) Once the applicant and FTA enter into a charter agreement, the
applicant may incorporate that agreement by reference into any
subsequent grant application instead of submitting an agreement under 49
CFR 604.7(a).
(e) Each State in FTA's State administered programs must:
(1) Obtain a certification of compliance with this part from each of
its current subrecipients within 60 days of May 13, 1987. The
certification shall state: ``(Name of subrecipient) certifies that it
shall comply with 49 CFR part 604 in the provision of any charter
service provided with FTA funded equipment or facilities.'';
(2) Retain this certification as long as the subrecipient is a
subrecipient; and
(3) Assure in each application submitted to FTA after May 13, 1987,
that all subrecipients have submitted the certification.
(f) If any recipient does not anticipate submitting a grant
application to FTA during Federal fiscal year 1987, the recipient must
submit two copies of the agreement set forth in Sec. 604.7(b) of this
part within 60 days of May 13, 1987, to the appropriate FTA regional
office. FTA will sign the agreement, retain one copy of the agreement
and return the other to the recipient.
(Approved by the Office of Management and Budget under Control No. 2132-
0543)
Sec. 604.9 Charter service.
(a) If a recipient desires to provide any charter service using FTA
equipment or facilities the recipient must first determine if there are
any private charter operators willing and able to provide the charter
service which the recipient desires to provide. To the extent that there
is at least one such private operator, the recipient is prohibited from
providing charter service with FTA funded equipment or facilities unless
one or more of the exceptions in Sec. 604.9(b) applies.
(b) Exceptions. (1) A recipient may provide any and all charter
service with FTA funded equipment and facilities to the extent that
there are no willing and able private charter operators.
(2) A recipient may enter into a contract with a private charter
operator
[[Page 16]]
to provide charter equipment to or service for the private charter
operator if:
(i) The private charter operator is requested to provide charter
service that exceeds its capacity; or
(ii) The private charter operator is unable to provide equipment
accessible to elderly and handicapped persons itself.
(3) A recipient in a non-urbanized area may petition FTA for an
exception to provide charter service directly to the customer if the
charter service provided by the willing and able private charter
operator or operators would create a hardship on the customer because:
(i) The willing and able private charter operator or operators
impose minimum durations pursuant to State regulation and the desired
trip length is shorter than the mandatory trip length; or
(ii) The willing and able private operator or operators are located
too far from the origin of the charter service.
(4) Any recipient may petition the Administrator for an exception to
provide charter service directly to the customer for special events to
the extent that private charter operators are not capable of providing
the service.
(5) A recipient may execute a contract with a government entity or a
private, non-profit organization exempt from taxation under subsection
501(c)(1), 501(c)(3), 501(c)(4), or 501(c)(19) of the Internal Revenue
Code to provide charter service upon obtaining a certification from that
entity or organization which states that:
(i) [the entity/organization] certifies that it is a government
entity or an organization exempt from taxation under subsection
501(c)(1), 501(c)(3), 501(c)(4), or 501(c)(19) of the Internal Revenue
Code; there will be a significant number of handicapped persons as
passengers on this charter trip; the requested charter trip is
consistent with the function and purpose of [the entity/organization];
and the charter trip will be organized and operated in compliance with
Title VI of the Civil Rights Act of 1964, as amended; and, section 19 of
the Federal Mass Transit Act of 1964, as amended, and 49 CFR part 27;
or, 45 CFR part 80; or,
(ii) [the entity/organization] certifies that it is a government
entity or an organization exempt from taxation under subsection
501(c)(1), 501(c)(3), 501(c)(4), or 501(c)(19) of the Internal Revenue
Code; [the entity/organization] is a qualified social service agency
under appendix A of 49 CFR part 604, as a recipient of funds, either
directly or indirectly, under one or more of the Federal programs listed
in appendix A; the requested charter trip is consistent with the
function and purpose of [the entity/organization]; and the charter trip
will be organized and operated in compliance with Title VI of the Civil
Rights Act of 1964, as amended; and, Section 19 of the Federal Mass
Transit Act of 1964, as amended, and 49 CFR part 27; or, 45 CFR part 80.
(iii) [the entity/organization] certifies that it is a government
entity or organization exempt from taxation under subsection 501(c)(1),
501(c)(3), 501(c)(4), or 501(c)(19) of the Internal Revenue Code; [the
entity/organization] either receives or is eligible to receive directly
or indirectly, from a State or local governmental body public welfare
assistance funds for purposes whose implementation may require the
transportation of a group of transit-advantaged or transit-dependent
persons; following a petition presented by the State in which the entity
or organization resides, FTA has determined in writing that an FTA
recipient may contract directly with the entity or organization for
charter services; the requested charter trip is consistent with the
functions and purposes of the entity or organization; and the charter
trip will be organized and operated in compliance with Title VI of the
Civil Rights Act of 1964, as amended; and section 19 of the Federal Mass
Transit Act of 1964, as amended, and 49 CFR part 27; or, 45 CFR part 80.
(6) A recipient in a non-urbanized area may execute a contract with
a government entity or a private, non-profit organization exempt from
taxation under subsection 501(c)(1), 501(c)(3), 501(c)(4), or 501(c)(19)
of the Internal Revenue Code to provide charter service upon obtaining a
certification from that entity or organization which states that:
[[Page 17]]
[the entity/organization] certifies that it is a government entity
or an organization exempt from taxation under subsection 501(c)(1),
501(c)(3), 501(c)(4), or 501(c)(19) of the Internal Revenue Code; more
than 50% of the passengers on this charter trip will be elderly; the
requested charter trip is consistent with the function and purpose of
[the entity/organization]; and the charter trip will be organized and
operated in compliance with Title VI of the Civil Rights Act of 1964, as
amended; and, Section 19 of the Federal Mass Transit Act of 1964, as
amended, and 49 CFR part 27; or, 45 CFR part 80.
(7) A recipient may provide charter service directly to the customer
where a formal agreement has been executed between the recipient and all
private charter operators it has determined to be willing and able in
accordance with this part, provided that:
(i) The agreement specifically allows the recipient to provide the
particular type of charter trip;
(ii) The recipient has provided for such an agreement in its annual
public charter notice published pursuant to this part before undertaking
any charter service pursuant to this exception; and
(iii) If a recipient has received several responses to its annual
public charter notice but ceased its review process after determining
that one private operator was willing and able, it must, before
concluding a formal charter agreement under this section, complete the
review process to ensure that all the willing and able private operators
are valid parties to the agreement.
(8) During the demonstration period described in paragraph
(b)(8)(iv) of this section, recipients in the FTA-selected sites may
submit applications to provide charter service to an advisory panel
equally representative of public transit providers or local business
organizations and local private operators, and which has either been
created for such purpose by the grantee, the State Department of
Transportation (State DOT), or metropolitan planning organization (MPO),
or which is part of the recipient's existing private sector consultation
process.
(i) The advisory panel will forward these applications to the State
DOT or MPO, which will grant those recommended by unanimous vote of the
advisory panel.
(ii) If the advisory panel does not unanimously endorse an
application, the State DOT or MPO will make a decision to grant or deny
the application based on the following criteria:
(A) Cost evaluation. A recipient may provide charter service when it
can do so at a significantly lower cost than can private charter
operators. Cost differences may be considered significant when there is
approximately a twenty percent difference between the average charge for
service by private operators and the recipient's fully allocated cost of
providing the service, or when the advisory panel determines them to be
significant.
(B) Equipment uniqueness. A recipient may provide charter service
using equipment that is not available from a private source, when such
equipment is essential to the purpose of the charter trip.
(C) Service nature. A recipient may provide unscheduled or demand
responsive service that could not be provided by a private operator
without advance notice or at a substantial surcharge to the customer.
(D) Specific local factors. A recipient may provide service which
responds to a clear need that cannot be met by the local private sector,
and which is important to the economic or social health and vitality of
the local area.
(iii) The State DOT or MPO may not grant applications to provide
service that would jeopardize the economic vitality of individual
private charter operators or would seriously detract from private
charter business.
(iv) The service described in this subsection may be provided only
during the demonstration program to be conducted through October 31,
1995, in the following sites:
(A) Monterey, California;
(B) Oklahoma City, Oklahoma;
(C) St. Louis, Missouri;
(D) Yolo County, California;
(E) Four sites within the State of Michigan.
(c) The process for requesting and granting an exception under 49
CFR 604.9(b)(3):
(1) The recipient must provide the private charter operators that it
has determined are willing and able in accordance with this part with a
written
[[Page 18]]
notice explaining why it is seeking an exception and state that they
have at least 30 days to submit written comments to the recipient on the
request;
(2) The recipient must send a copy of the notice, all comments
received, and any further information it desires in support of its
request to the Chief Counsel.
(3) The Chief Counsel shall review the materials submitted and issue
a written decision denying or granting in whole or in part the request.
In making this decision, the Chief Counsel may seek such additional
information as the Chief Counsel determines is needed.
(4) Any exception that the Chief Counsel grants under 49 CFR
604.9(b)(3) shall be effective for not longer than 12 months from the
date that the Chief Counsel grants it.
(d) The process for requesting and granting and exception under 49
CFR 604.9(b)(4):
(1) The recipient must submit its petition for an exception to the
Administrator at least 90 days prior to the day or days on which it
desires to provide charter service.
(2) The petition must describe the event, explain how it is special,
and explain the amount of charter service which private charter
operators are not capable of providing.
(3) The Administrator will review the materials and issue a written
decision denying or granting in whole or in part the request. In making
this decision, the Administrator may seek such additional information as
the Administrator determines is needed.
(4) Any exception granted by the Administrator under 49 CFR
604.9(b)(4) shall be effective solely for the event for which the
recipient requests an exception.
(e) Any charter service that a recipient provides under any of the
exceptions in this part must be incidental charter service.
[52 FR 11933, Apr. 13, 1987, as amended at 53 FR 53355, Dec. 30, 1988;
58 FR 36899, July 9, 1993; 58 FR 52685, Oct. 12, 1993; 59 FR 51134, Oct.
7, 1994]
Sec. 604.11 Procedures for determining if there are any willing and able private charter operators.
(a) To determine if there is at least one private charter operator
willing and able to provide the charter service that the recipient
desires to provide, the recipient must complete a public participation
process:
(1) At least 60 days before it desires to begin to provide charter
service if it is not doing so on May 13, 1987; or
(2) Not more than 90 days after May 13, 1987 if the recipient is
providing charter service on May 13, 1987 and desires to continue to
provide charter service.
(b) The public participation process must at a minimum include:
(1) Placing a notice in a newspaper, or newspapers, of general
circulation within the proposed geographic charter service area;
(2) Sending a copy of the notice to all private charter service
operators in the proposed geographic charter service area and to any
private charter service operator that requests notice;
(3) Sending a copy of the notice to the United Bus Owners of America
, 1300 L Street, NW., suite 1050, Washington, DC 20005, and the American
Bus Association, 1100 New York Avenue, NW, Suite 1050, Washington, DC
20005-3934.
(c) The notice must:
(1) State the recipient's name;
(2) Describe the charter service that the recipient proposes to
provide limited to the days, times of day, geographic area, and
categories of revenue vehicle, but not the capacity or the duration of
the charter service.
(3) Include a statement providing any private charter operator
desiring to be considered willing and able with at least 30 days from
the date of the notice to submit written evidence to prove that it is
willing and able;
(4) State the address to which the evidence must be sent.
(5) Include a statement that the evidence necessary for the
recipient to determine if a private charter operator is willing and able
includes only the following:
[[Page 19]]
(i) A statement that the private operator has the desire and the
physical capability to actually provide the categories of revenue
vehicle specified; and
(ii) A copy of the documents to show that the private charter
operator has the requisite legal authority to provide the proposed
charter service and that it meets all necessary safety certification,
licensing and other legal requirements to provide the proposed charter
service.
(6) Include a statement that the recipient shall review only that
evidence submitted by the deadline, shall complete its review within 30
days of the deadline, and within 60 days of the deadline shall inform
each private operator that submitted evidence what the results of the
review are.
(7) Include a statement that the recipient shall not provide any
charter service using equipment or facilities funded under the Acts to
the extent that there is at least one willing and able private charter
operator unless the recipient qualifies for one or more of the
exceptions in 49 CFR 604.9(b).
(d) Any recipient that desires to continue to provide charter
service using FTA funded equipment or facilities shall follow the
procedures in 49 CFR 604.11 (b) and (c) annually during the month in
which it published its first newspaper notice to redetermine the extent
to which there is at least one willing and able private charter
operator.
(e) Any recipient, including the State in State administered
programs, may elect to comply with this procedure for all of its
subrecipients, or delegate this responsibility to the subrecipients, or
delegate this responsibility to only some of its subrecipients.
(Approved by the Office of Management and Budget under Control No. 2132-
0543)
[52 FR 11933, Apr. 13, 1987, as amended at 55 FR 34932, Aug. 27, 1990;
59 FR 43778, Aug. 25, 1994]
Sec. 604.13 Reviewing evidence submitted by private charter operators.
(a) The recipient shall review the evidence submitted in response to
the notice given under 49 CFR 604.11 within 30 days of the deadline for
the submission of evidence.
(b) Within 60 days of the deadline for the submission of evidence,
the recipient shall notify each private charter operator that submitted
evidence of the recipient's decision.
(c) The recipient must review the evidence submitted to determine if
the evidence proves that the private charter operator has:
(1) The desire and the physical capability to actually provide
charter service using the categories of revenue vehicles; and
(2) The required legal authority and the necessary safety
certifications, licenses and other legal requirements to provide charter
service.
(d) The recipient must determine that a private charter operator
which meets the requirements in 49 CFR 604.13(c) is willing and able.
(e) A recipient may look behind the evidence submitted by a private
charter operator only if the recipient has reasonable cause to believe
that some or all of the evidence has been falsified.
(f) A recipient may, within its discretion, stop reviewing the
evidence submitted by private charter operators when the recipient has
determined that there is one or more private charter operators willing
and able to provide all of the charter service that the recipient
proposed to provide in its notice. A recipient may, however, review the
evidence submitted by all private charter operators and create a roster
of willing and able private charter operators.
(g) The entity that complies with the public participation process
under 49 CFR 604.11(e) shall be responsible for complying with the
requirements in 49 CFR 604.13.
(Approved by the Office of Management and Budget under Control No. 2132-
0543)
Subpart B_Complaint Process
Sec. 604.15 Filing a complaint.
(a) An interested party (``complainant'') who believes that a
recipient is in violation of the requirements of this part may submit a
written complaint to the FTA Regional Administrator. The complainant
shall also send a copy of the complaint to the recipient
(``respondent'').
(b) If the Regional Administrator determines that the complaint is
not
[[Page 20]]
without obvious merit and that it states grounds on which relief may be
granted, the Regional Administrator shall advise the complainant and
respondent to attempt to conciliate the dispute. The period for informal
conciliation shall last for up to 30 days from the date of receipt of
the Regional Administrator's order unless an extension is mutually
agreed upon by the parties.
(c) If the parties are unable to conciliate the dispute, either
party may so notify the Regional Administrator in writing. The Regional
Administrator shall send a copy of the complaint to the respondent and
provide it with 30 days from the receipt of the notice to provide
written evidence to show that no violation has occurred. The respondent
shall provide a copy of this information to the complainant.
(d) After the Regional Administrator receives that respondent's
evidence, the Regional Administrator shall inform the complainant that
it has 30 days from the receipt of the notice to rebut the respondent's
evidence. The complainant shall provide a copy of its rebuttal to the
respondent.
(e) The Regional Administrator shall review the evidence submitted
and prepare a written decision. The Regional Administrator shall attempt
to transmit the written decision to the parties within 30 days of
receiving all of the evidence.
(f) If the Regional Administrator determines that further
investigation is necessary, including the submission of additional
information or the holding of an informal evidentiary hearing, the
Regional Administrator shall so inform the parties in writing.
(g) Either party may request an informal evidentiary hearing prior
to the transmission of the Regional Administrator's decision. The
Regional Administrator may grant or deny the request.
(h) If an informal evidentiary hearing is held, the date and
location shall be arranged by the Regional Administrator in consultation
with the parties. Any new evidence introduced by the parties at the
informal evidentiary hearing shall be submitted to the Regional
Administrator within 10 days after the hearing.
(i) The Regional Administrator may extend the deadlines imposed in
this part for administrative convenience by notifying all parties in
writing of the extensions.
[52 FR 11933, Apr. 13, 1987, as amended at 58 FR 52685, Oct. 12, 1993]
Sec. 604.17 Remedies.
(a) If the Regional Administrator determines that a violation of
this part has occurred, the Regional Administrator may order such
remedies as the Regional Administrator determines are appropriate.
(b) If the Regional Administrator determines that there has been a
continuing pattern of violation of this part, the Regional Administrator
may bar the respondent from the receipt of further financial assistance
for mass transportation facilities and equipment.
[52 FR 11933, Apr. 13, 1987, as amended at 58 FR 52685, Oct. 12, 1993]
Sec. 604.19 Appeals.
(a) The losing party may appeal the Regional Administrator's
decision to the Administrator within 10 days of receipt of the decision.
The losing party (''appellant'') shall include in its appeal the basis
for the appeal and evidence to support the position. The appellant shall
send a copy of the appeal to the prevailing party (''appellee'').
(b) The Administrator will only take action on an appeal if the
appellant presents evidence that there are new matters of fact or points
of law that were not available or not known during the investigation of
the complaint.
(c) If the Administrator takes action on an appeal, the
Administrator shall provide the appellee with 10 days from the receipt
of the notice to respond to the evidence contained in the appeal.
(d) The Administrator shall send a copy of the appellee's response
to the appellant and provide it with 10 days from the receipt of the
notice to rebut the appellee's response.
(e) The Administrator shall endeavor to make a final determination
on the appeal within 10 days of the receipt of the appellant's rebuttal.
[52 FR 11933, Apr. 13, 1987, as amended at 58 FR 52685, Oct. 12, 1993]
[[Page 21]]
Sec. 604.21 Judicial review.
The Regional Administrator's decision, or the Administrator's
decision on appeal, shall be final and conclusive on all parties, but it
is subject to judicial review pursuant to sections 701-706 of Title 5 of
the United States Code.
[52 FR 11933, Apr. 13, 1987, as amended at 58 FR 52685, Oct. 12, 1993]
Appendix A to Part 604
The following is a list of Federal assistance programs administered
under the United States Department of Health and Human Services (HHS).
The financial assistance under each of these HHS programs includes
funding for the transportation needs of the program beneficiaries.
------------------------------------------------------------------------
Program title Agency
------------------------------------------------------------------------
Project Grant and Cooperative Agreements Public Health Service, HHS.
for Tuberculosis Control Programs.
Mental Health Service for Cuban Entrants.. Public Health Service, HHS.
Mental Health Planning and Demonstration Public Health Service, HHS.
Projects.
Alcohol, Drug Abuse Treatment and Public Health Service, HHS.
Rehabilitation Block Grant.
Family Planning-Services.................. Public Health Service, HHS.
Community Health Centers.................. Public Health Service, HHS.
Indian Health Services--Health Management Public Health Service, HHS.
Development Program.
Migrant Health Centers Grants............. Public Health Service, HHS.
Childhood Immunization Grants............. Public Health Service, HHS.
Administration for Children, Youth and Office of Human Development
Families (ACYF)--Head Start. Services, HHS.
ACYF Child Welfare Research and Office of Human Development
Demonstration Program. Services, HHS.
ACYF Runaway and Homeless Youth........... Office of Human Development
Services, HHS.
ACYF Adoption Opportunities............... Office of Human Development
Services, HHS.
ACYF Child Abuse and Neglect (State Office of Human Development
Grants). Services, HHS.
ACYF Child Abuse and Neglect Discretionary Office of Human Development
Services, HHS.
Administration for Native Americans (ANA) Office of Human Development
Native American Programs--Financial Services, HHS.
Assistance Grants.
ANA Research, Demonstration and Evaluation Office of Human Development
Services, HHS.
ANA Training and Technical Assistance..... Office of Human Development
Services, HHS.
Administration of Developmental Office of Human Development
Disabilities (ADD)--Basic Support and Services, HHS.
Advocacy Grants.
ADD Special Projects...................... Office of Human Development
Services, HHS.
ADD University Affiliated Facilities...... Office of Human Development
Services, HHS.
Administration on Aging (ADA) Special Office of Human Development
Programs for the Aging--Grants for Services, HHS Title III,
Supportive Services and Senior Centers. Part B--
ADA Title III, Part C, Nutrition Services. Office of Human Development
Services, HHS.
ADA Grants to Indian Tribes............... Office of Human Development
Services, HHS.
ADA Training, Research and Discretionary Office of Human Development
Projects and Programs. Services, HHS.
Social Service Block Grant................ Office of Human Development
Services, HHS.
Medical Assistance Program Title XIX...... Health Care Financing
Medicaid; Administration,
HHS.
Medicare--Supplemental Medical Insurance.. Health Care Financing
Administration, HHS.0
Aid to Families with Dependent Children Family Support
(AFDC)--Maintenance Assistance. Administration, HHS.
Work Incentive Program.................... Family Support
Administration, HHS.
Community Service Block Grant (CSBG)...... Family Support
Administration, HHS.
CSBG Discretionary Awards................. Family Support
Administration, HHS.
CSBG Discretionary Awards--Community Food Family Support
and Nutrition. Administration, HHS.
Social Security--Disability Insurance..... Social Security
Administration, HHS.
Supplemental Security Income.............. Social Security
Administration, HHS.
Home Health Services and Training......... Public Health Service, HHS.
Coal Miners Respiratory Impairment Public Health Service, HHS.
Treatment Clinics and Services.
Preventive Health Services--Sexually Public Health Service, HHS.
Transmitted Diseases Control Grants.
Health Programs for Refugees.............. Public Health Service, HHS.
------------------------------------------------------------------------
[53 FR 53355, Dec. 30, 1988]
PART 605_SCHOOL BUS OPERATIONS--Table of Contents
Subpart A_General
Sec.
605.1 Purpose.
605.2 Scope.
605.3 Definitions.
605.4 Public hearing requirement.
Subpart B_School Bus Agreements
605.10 Purpose.
605.11 Exemptions.
605.12 Use of project equipment.
605.13 Tripper service.
605.14 Agreement.
605.15 Content of agreement.
605.16 Notice.
605.17 Certification in lieu of notice.
[[Page 22]]
605.18 Comments by private school bus operators.
605.19 Approval of school bus operations.
Subpart C_Modification of Prior Agreements and Amendment of Application
for Assistance
605.20 Modification of prior agreements.
605.21 Amendment of applications for assistance.
Subpart D_Complaint Procedures and Remedies
605.30 Filing a complaint.
605.31 Notification to the respondent.
605.32 Accumulation of evidentiary material.
605.33 Adjudication.
605.34 Remedy where there has been a violation of the agreement.
605.35 Judicial review.
Subpart E_Reporting and Records
605.40 Reports and information.
Appendix A to Part 605
Authority: Federal Mass Transit Act of 1964, as amended (49 U.S.C.
1601 et seq.); 23 U.S.C. 103(e)(4); 23 U.S.C. 142 (a) and (c); and 49
CFR 1.51.
Source: 41 FR 14128, Apr. 1, 1976, unless otherwise noted.
Subpart A_General
Sec. 605.1 Purpose.
(a) The purpose of this part is to prescribe policies and procedures
to implement section 109(a) of the National Mass Transportation
Assistance Act of 1974 (Pub. L. 93-503; November 26, 1974; 88 Stat.
1565). Section 109(a) adds a new section 3(g) to the Federal Mass
Transit Act of 1964, as amended (49 U.S.C. 1602(g)) and differs from
section 164(b) of the Federal-Aid Highway Act of 1973 (49 U.S.C.
1602a(b)) in that section 3(g) applies to all grants for the
construction or operation of mass transportation facilities and
equipment under the Federal Mass Transit Act, and is not limited to
grants for the purchase of buses as is section 164(b).
(b) By the terms of section 3(g) no Federal financial assistance may
be provided for the construction or operation of facilities and
equipment for use in providing public mass transportation service to an
applicant unless the applicant and the Administrator enter into an
agreement that the applicant will not engage in school bus operations
exclusively for the transportation of students and school personnel, in
competition with private school bus operators.
Sec. 605.2 Scope.
These regulations apply to all recipients of financial assistance
for the construction or operation of facilities and equipment for use in
providing mass transportation under: (a) The Federal Mass Transit Act of
1964, as amended (49 U.S.C. 1601 et seq.); (b) 23 U.S.C. 142 (a) and
(c); and 23 U.S.C. 103 (e)(4).
Sec. 605.3 Definitions.
(a) Except as otherwise provided, terms defined in the Federal Mass
Transit Act of 1964, as amended (49 U.S.C. 1604, 1608) are used in this
part as so defined.
(b) For purposes of this part--
The Acts means the Federal Mass Transit Act of 1964, as amended (49
U.S.C. 1601 et seq.); 23 U.S.C. 142 (a) and (c); and 23 U.S.C.
103(e)(4).
Administrator means the Federal Mass Transit Administrator or his
designee.
Adequate transportation means transportation for students and school
personnel which the Administrator determines conforms to applicable
safety laws; is on time; poses a minimum of discipline problems; is not
subject to fluctuating rates; and is operated efficiently and in harmony
with state educational goals and programs.
Agreement means a contractual agreement required under section 3(g)
of the Federal Mass Transit Act of 1964, as amended (49 U.S.C. 1602(g)).
Applicant means applicant for assistance under the Acts.
Assistance means Federal financial assistance for the purchase of
buses and the construction or operation of facilities and equipment for
use in providing mass transportation services under the Acts, but does
not include research, development and demonstration projects funded
under the Acts.
Grant contract means the contract between the Government and the
grantee which states the terms and conditions for assistance under the
Acts.
Government means the Government of the United States of America.
[[Page 23]]
Grantee means a recipient of assistance under the Acts.
Incidental means the transportation of school students, personnel
and equipment in charter bus operations during off peak hours which does
not interfere with regularly scheduled service to the public (as defined
in the Opinion of the Comptroller General of the United States, B160204,
December 7, 1966, which is attached as appendix A of this part).
Interested party means an individual, partnership, corporation,
association or public or private organization that has a financial
interest which is adversely affected by the act or acts of a grantee
with respect to school bus operations.
Reasonable Rates means rates found by the Administration to be fair
and equitable taking into consideration the local conditions which
surround the area where the rate is in question.
School bus operations means transportation by bus exclusively for
school students, personnel and equipment in Type I and Type II school
vehicles as defined in Highway Safety Program Standard No. 17.
Tripper service means regularly scheduled mass transportation
service which is open to the public, and which is designed or modified
to accommodate the needs of school students and personnel, using various
fare collections or subsidy systems. Buses used in tripper service must
be clearly marked as open to the public and may not carry designations
such as ``school bus'' or ``school special''. These buses may stop only
at a grantee or operator's regular service stop. All routes traveled by
tripper buses must be within a grantee's or operator's regular route
service as indicated in their published route schedules.
Urban area means the entire area in which a local public body is
authorized by appropriate local, State and Federal law to provide
regularly scheduled mass transportation service. This includes all areas
which are either: (a) Within an ``urbanized area'' as defined and fixed
in accordance with 23 CFR part 470, subpart B; or (b) within an ``urban
area'' or other built-up place as determined by the Secretary under
section 12(c)(4) of the Federal Mass Transit Act of 1964, as amended (49
U.S.C. 1608(c)(4)).
Sec. 605.4 Public hearing requirement.
Each applicant who engages or wishes to engage in school bus
operations shall afford an adequate opportunity for the public to
consider such operations at the time the applicant conducts public
hearings to consider the economic, social or environmental effects of
its requested Federal financial assistance under section 3(d) of the
Federal Mass Transit Act of 1964, as amended (49 U.S.C. 1602(d)).
Subpart B_School Bus Agreements
Sec. 605.10 Purpose.
The purpose of this subpart is to formulate procedures for the
development of an agreement concerning school bus operations.
Sec. 605.11 Exemptions.
A grantee or applicant may not engage in school bus operations in
competition with private school bus operators unless it demonstrates to
the satisfaction of the Administrator as follows:
(a) That it operates a school system in its urban area and also
operates a separate and exclusive school bus program for that school
system; or
(b) That private school bus operators in the urban area are unable
to provide adequate transportation, at a reasonable rate, and in
conformance with applicable safety standards; or
(c) That it is a state or local public body or agency thereof (or a
direct predecessor in interest which has acquired the function of so
transporting schoolchildren and personnel along with facilities to be
used therefor) who was so engaged in school bus operations:
(1) In the case of a grant involving the purchase of buses--anytime
during the 12-month period immediately prior to August 13, 1973.
(2) In the case of a grant for construction or operating of
facilities and equipment made pursuant to the FT Act as amended (49
U.S.C. 1601 et seq.), anytime during the 12-month period
[[Page 24]]
immediately prior to November 26, 1974.
Sec. 605.12 Use of project equipment.
No grantee or operator of project equipment shall engage in school
bus operations using buses, facilities or equipment funded under the
Acts. A grantee or operator may, however, use such buses, facilities and
equipment for the transportation of school students, personnel and
equipment in incidental charter bus operations. Such use of project
equipment is subject to part 604 of Federal Mass Transit Regulations.
Sec. 605.13 Tripper service.
The prohibition against the use of buses, facilities and equipment
funded under the Acts shall not apply to tripper service.
Sec. 605.14 Agreement.
Except as provided in Sec. 605.11 no assistance shall be provided
under the Acts unless the applicant and the Administrator shall have
first entered into a written agreement that the applicant will not
engage in school bus operations exclusively for the transportation of
students and school personnel in competition with private school bus
operators.
Sec. 605.15 Content of agreement.
(a) Every grantee who is not authorized by the Administrator under
Sec. 605.11 of this part to engage in school bus operations shall, as a
condition of assistance, enter into a written agreement required by
Sec. 605.14 which shall contain the following provisions:
(1) The grantee and any operator of project equipment agrees that it
will not engage in school bus operations in competition with private
school bus operators.
(2) The grantee agrees that it will not engage in any practice which
constitutes a means of avoiding the requirements of this agreement, part
605 of the Federal Mass Transit Regulations, or section 164(b) of the
Federal-Aid Highway Act of 1973 (49 U.S.C. 1602a(b)).
(b) Every grantee who obtains authorization from the Administrator
to engage in school bus operations under Sec. 605.11 of this part
shall, as a condition of assistance, enter into a written agreement
required by Sec. 605.14 of this part which contains the following
provisions:
(1) The grantee agrees that neither it nor any operator of project
equipment will engage in school bus operations in competition with
private school bus operators except as provided herein.
(2) The grantee, or any operator of project equipment, agrees to
promptly notify the Administrator of any changes in its operations which
might jeopardize the continuation of an exemption under Sec. 605.11.
(3) The grantee agrees that it will not engage in any practice which
constitutes a means of avoiding the requirements of this agreement, part
605 of the Federal Transit Administration regulations or section 164(b)
of the Federal-Aid Highway Act of 1973 (49 U.S.C. 1602a(b)).
(4) The grantee agrees that the project facilities and equipment
shall be used for the provision of mass transportation services within
its urban area and that any other use of project facilities and
equipment will be incidental to and shall not interfere with the use of
such facilities and equipment in mass transportation service to the
public.
Sec. 605.16 Notice.
(a) Each applicant who engages or wishes to engage in school bus
operations shall include the following in its application:
(1) A statement that it has provided written notice to all private
school bus operators operating in the urban area of its application for
assistance and its proposed or existing school bus operations;
(2) A statement that it has published in a newspaper of general
circulation in its urban area a notice of its application and its
proposed or existing school bus operations;
(b) The notice required by paragraphs (a) (1) and (2) of this
section shall include the following information:
(1) A description of the area to be served by the applicant.
(2) An estimation of the number of each type of bus which will be
employed on the proposed school bus operations, and the number of
weekdays
[[Page 25]]
those buses will be available for school bus operations.
(3) A statement of the time, date, and place of public hearings
required under section 3(d) of the Federal Mass Transit Act of 1964, as
amended (49 U.S.C. 1602(d)), to be held on the application for
assistance.
(4) A statement setting forth reasons the applicant feels it should
be allowed to engage in school bus operations under Sec. 605.11 of this
part.
(c) Copies of the application for assistance and notice required by
paragraph (a) of this shall be available for inspection during the
regular business hours at the office of the applicant.
Sec. 605.17 Certification in lieu of notice.
If there are no private school bus operators operating in the
applicant's urban area, the applicant may so certify in its application
in lieu of meeting the requirements of Sec. 605.16. This certification
shall be accompanied by a statement that the applicant has published, in
a newspaper of general circulation in its urban area, a notice stating
that it has applied for assistance as provided under Sec. 605.16(b) and
that it has certified that there are no private school bus operators
operating in its urban area. A copy of the notice as published shall be
included.
Sec. 605.18 Comments by private school bus operators.
Private school bus operators may file written comments on an
applicant's proposed or existing school bus operations at the time of
the public hearing held pursuant to section 3(d) of the Federal Mass
Transit Act of 1964, as amended (49 U.S.C. 1602(d)). The comments of
private school bus operators must be submitted by the applicant to the
Administrator together with the transcript of this public hearing.
Sec. 605.19 Approval of school bus operations.
(a) The Administrator will consider the comments filed by private
school bus operators prior to making any findings regarding the
applicant's proposed or existing school bus operations.
(b) After a showing by the applicant that it has complied with the
requirements of 49 U.S.C. 1602(d) and this subpart, the Administrator
may approve its school bus operations.
(c) If the Administrator finds that the applicant has not complied
with the notice requirement of this part or otherwise finds that the
applicant's proposed or existing school bus operations are unacceptable,
he will so notify the applicant in writing, stating the reasons for his
findings.
(d) Within 20 days after receiving notice of adverse findings from
the Administrator, an applicant may file written objections to the
Administrator's findings or submit a revised proposal for its school bus
operations. If an applicant revises its proposed or existing school bus
operations, it shall mail a copy of these revisions along with the
findings of the administrator to private school bus operators required
to be notified under Sec. 605.16.
(e) Private school bus operators who receive notice under paragraph
(d) of this section may within 20 days after receipt of notice file
written comments on the proposed revisions with the Administrator. The
Administrator will consider these comments prior to his approval of a
proposed revision by the applicant.
(f) Upon receipt of notice of approval of its school bus operations,
the applicant may enter into an agreement with the Administrator under
Sec. 605.14.
Subpart C_Modification of Prior Agreements and Amendment of Application
for Assistance
Sec. 605.20 Modification of prior agreements.
(a) Any grantee which, prior to the adoption of this part, entered
into an agreement required by section 164(b) of the Federal-Aid Highway
Act of 1973 (49 U.S.C. 1602(a)(b)), or section 3(g) of the Federal Mass
Transit Act of 1964, as amended (49 U.S.C. 1602(g)), who engages or
wishes to engage in school bus operations in competition with private
school bus operators, shall seek modification of that agreement in
accordance with paragraphs (b) through (d) of this section.
(b) The grantee shall develop a statement setting forth in detail
the reasons it feels it should be allowed to engage in school bus
operations under Sec. 605.11
[[Page 26]]
of this part. A copy of the statement should be provided private school
bus operators who provide service in the grantee's urban area.
(c) The grantee shall allow 30 days for persons receiving notice
under this section to respond with written comments concerning its
proposed or existing school bus operations.
(d) After receiving written comments, the grantee shall send his
proposal with written comments thereon to the Administrator for his
review under Sec. 605.17.
Sec. 605.21 Amendment of applications for assistance.
Pending applications for assistance upon which public hearings have
been held pursuant to section 3(d) of the Federal Mass Transit Act of
1964, as amended (49 U.S.C. 1602(d)), and applications which have been
approved by the Administrator but for which no grant contract has been
executed, shall be amended by the applicant to conform to this part by
following the procedures of Sec. 605.20(b) through (d).
Subpart D_Complaint Procedures and Remedies
Sec. 605.30 Filing a complaint.
Any interested party may file a complaint with the Administrator
alleging a violation or violations of terms of an agreement entered into
pursuant to Sec. 605.14. A complaint must be in writing, must specify
in detail the action claimed to violate the agreement, and must be
accompanied by evidence sufficient to enable the Administrator to make a
preliminary determination as to whether probable cause exists to believe
that a violation of the agreement has taken place.
Sec. 605.31 Notification to the respondent.
On receipt of any complaint under Sec. 605.30, or on his own motion
if at any time he shall have reason to believe that a violation may have
occurred, the Administrator will provide written notification to the
grantee concerned (hereinafter called ``the respondent'') that a
violation has probably occurred. The Administrator will inform the
respondent of the conduct which constitutes a probable violation of the
agreement.
Sec. 605.32 Accumulation of evidentiary material.
The Administrator will allow the respondent not more than 30 days to
show cause, by submission of evidence, why no violation should be deemed
to have occurred. A like period shall be allowed to the complainant, if
any, during which he may submit evidence to rebut the evidence offered
by the respondent. The Administrator may undertake such further
investigation, as he may deem necessary, including, in his discretion,
the holding of an evidentiary hearing or hearings.
Sec. 605.33 Adjudication.
(a) After reviewing the results of such investigation, including
hearing transcripts, if any, and all evidence submitted by the parties,
the Administrator will make a written determination as to whether the
respondent has engaged in school bus operations in violation of the
terms of the agreement.
(b) If the Administrator determines that there has been a violation
of the agreement, he will order such remedial measures as he may deem
appropriate.
(c) The determination by the Administrator will include an analysis
and explanation of his findings.
Sec. 605.34 Remedy where there has been a violation of the agreement.
If the Administrator determines, pursuant to this subpart, that
there has been a violation of the terms of the agreement, he may bar a
grantee or operator from the receipt of further financial assistance for
mass transportation facilities and equipment.
Sec. 605.35 Judicial review.
The determination of the Administrator pursuant to this subpart
shall be final and conclusive on all parties, but shall be subject to
judicial review pursuant to title 5 U.S.C. 701-706.
Subpart E_Reporting and Records
Sec. 605.40 Reports and information.
The Administrator may order any grantee or operator for the grantee,
to
[[Page 27]]
file special or separate reports setting forth information relating to
any transportation service rendered by such grantee or operator, in
addition to any other reports required by this part.
Appendix A to Part 605
Comptroller General of the
United States,
Washington, DC, December 7, 1966.
Dear Mr. Wilson: The enclosure with your letter of October 4, 1966,
concerns the legality of providing a grant under the Federal Mass
Transit Act of 1964 to the City of San Diego, (City), California. The
problem involved arises in connection with the definition in subsection
9(d)(5) of the Act, 49 U.S.C. 1608(d)(5), excluding charter or
sightseeing service from the term ``mass transportation.''
It appears from the enclosure with your letter that the City
originally included in its grant application a request for funds to
purchase 8 buses designed for charter service. Subsequently the City
amended its application by deleting a request for a portion of the funds
attributable to the charter bus coaches. However, in addition to the 8
specially designed charter buses initially applied for, the City
allegedly uses about 40 of its transit type buses to a substantial
extent for charter-type services. In light of these factors surrounding
the application by the City, the enclosure requests our opinion with
regard to the legality of grants under the Act as it applies to certain
matters (in effect questions), which are numbered and quoted below and
answered in the order presented.
Number one:
``The grant of funds to a City to purchase buses and equipment which
are intended for substantial use in the general charter bus business as
well as in the Mass Transportation type business.''
The Federal Mass Transit Act of 1964 does not authorize grants to
assist in the purchase of buses or other equipment for any service other
than urban mass transportation service. Section 3(a) of the Act limits
the range of eligible facilities and equipment to ``* * * buses and
other rolling stock, and other real or personal property needed for an
efficient and coordinated mass transportation system.'' In turn, ``mass
transportation'' is defined, in section 9(d)(5) of the Act, specifically
to exclude charter service. We are advised by the Department of Housing
and Urban Development (HUD) that under these provisions, the Department
has limited its grants to the purchase of buses of types suitable to
meet the needs of the particular kind of urban mass transportation
proposed to be furnished by the applicant.''
HUD further advises that:
``One of the basic facts of urban mass transportation operations is
that the need for rolling stock is far greater during the morning and
evening rush hours on weekdays than at any other time. For that reason,
any system which has sufficient rolling stock to meet the weekday rush-
hour needs of its customers must have a substantial amount of equipment
standing idle at other times, as well as drivers and other personnel
being paid when there is little for them to do. To relieve this
inefficient and uneconomical situation, quite a number of cities have
offered incidental charter service using this idle equipment and
personnel during the hours when the same are not needed for regularly
scheduled runs. Among the cities so doing are Cleveland, Pittsburgh,
Alameda, Tacoma, Detroit and Dallas.
``Such service contributes to the success of urban mass
transportation operations by bringing in additional revenues and
providing full employment to drivers and other employees. It may in some
cases even reduce the need for Federal capital grant assistance.
``We do not consider that there is any violation of either the
letter or the spirit of the Act as a result of such incidental use f
buses in charter service. To guard against abuses, every capital
facilities grant contract made by this Department contains the following
provisions:
`` `Sec. 4. Use of Project Facilities and Equipment--The Public Body
agrees that the Project facilities and equipment will be used for the
provision of mass transportation service within its urban area for the
period of the useful life of such facilities and equipment. . . . The
Public Body further agrees that during the useful life of the Project
facilities and equipment it will submit to HUD such financial statements
and other data as may be deemed necessary to assure compliance with this
Section.' ''
It is our view that grants may be made to a city under section 3(a)
of the Act to purchase buses needed by the city for an efficient and
coordinated mass transportation system, even though the city may intend
to use such buses for charter use when the buses are not needed on
regularly scheduled runs (i.e. for mass transportation purposes) and
would otherwise be idle.
Number two:
``Whether a grant of such funds is proper if charter bus use is
incidental to mass public transportation operations. If so, what is the
definition of incidental use.''
We are advised by HUD that under its legislative authority, it
cannot and does not take charter service requirements into consideration
in any way in evaluating the needs of a local mass transportation system
for buses or other equipment.
HUD further advises that:
``However, as indicated above, we are of the opinion that any lawful
use of project
[[Page 28]]
equipment which does not detract from or interfere with the urban mass
transportation service for which the equipment is needed would be deemed
an incidental use of such equipment, and that such use of project
equipment is entirely permissible under our legislation. What uses are
in fact incidental, under this test, can be determined only on a case-
by-case basis.''
In view of what we stated above in answer to the first question, the
first part of question two is answered in the affirmative.
As to the second part of the question, in Security National
Insurance Co. v. Secuoyah Marina, 246F.2d 830, ``incident'' is defined
as meaning ``that which appertains to something else which is primary.''
Thus, we cannot say HUD's definition of incidental use as set forth
above is unreasonable. Under the Act involved grants may be made to
purchase buses only if the buses are needed for an efficient and
coordinated mass transportation system. It would appear that if buses
are purchased in order to meet this need, and are, in fact, used to meet
such need, the use of such buses for charter service when not needed for
mass transportation services would, in effect, be an ``incidental use,''
insofar as pertinent here. In our opinion such incidental use would not
violate the provisions of the 1964 Act.
Number three:
``The grant of funds for mass public transportation purposes to a
City which has expressed an intent to engage in the general charter bus
business when such funds would in effect constitute a subsidy to the
City of its intended charter bus operations; i.e. freeing Municipal
funds with which to purchase charter bus equipment.''
Section 4(a) of the 1954 Act (49 U.S.C. 1603(a)) provides, in part,
as follows:
``* * * The Administrator (now Secretary), on the basis of
engineering studies, studies of economic feasibility, and data showing
the nature and extent of expected utilization of the facilities and
equipment, shall estimate what portion of the cost of a project to be
assisted under section 1602 of this title cannot be reasonably financed
from revenues--which portion shall hereinafter be called `net project
cost'. The Federal grant for such a project shall not exceed two-thirds
of the net project cost. The remainder of the net project cost shall be
provided, in cash, from sources other than Federal funds * * *.''
It is clear from the legislative history of the Act involved that
the ``revenues'' to be considered are mass transportation system
revenues including any revenues from incidental charter operations.
There is nothing in the language of the Act which requires HUD to take
into account the status of the general funds of an applicant city in
determining how much capital grant assistance to extend to that city.
It should be noted that in a sense nearly every capital grant to a
city constitutes a partial subsidy of every activity of the city which
is supported by tax revenues, since it frees tax revenues for such other
uses.
Number four:
``With specific reference to the application of the City of San
Diego for funds under its application to the Department of Housing and
Urban Development dated June 2, 1966, whether the Act permits a grant to
purchase equipment wherein 25 percent of such equipment will be used
either exclusively or substantially in the operation of charter bus
services.''
As to the City of San Diego's grant application, we have been
advised by HUD as follows:
``As explained above, the Act authorizes assistance only for
facilities to be used in mass transportation service. We could not,
therefore, assist San Diego in purchasing any equipment to be used
`exclusively' in the operation of charter bus service. Furthermore, as
also explained above, assisted mass transportation equipment can be used
only incidentally for such charter services.
``Whether equipment used `substantially' in such service qualifies
under this rule can be answered only in the light of the specifics of
the San Diego situation. * * * we have already, during our preliminary
review of the City's application, disallowed about $150,000 of the
proposed project cost which was allocated to the purchase of eight
charter-type buses.
``The final application of the City of San Diego is presently under
active consideration by this Department. In particular, we have
requested the City to furnish additional information as to the nature
and extent of the proposed use, if any, of project facilities and
equipment in charter service, so that we can further evaluate the
application under the criteria above set forth. We have also requested
similar information from Mr. Fredrick J. Ruane, who has filed a
taxpayers' suit (Superior Court for San Diego County Civil
297329) against the City, contesting its authority to engage in
charter bus operations.''
As indicated above, it is clear that under the Act in question
grants may not legally be made to purchase buses to be used
``exclusively'' in the operation of charter bus service. However, in
view of the purposes of the Act involved it is our opinion that a city
which has purchased with grant funds buses needed for an efficient mass
transportation system, is not precluded by the act from using such buses
for charter service during idle or off-peak periods when the buses are
not needed for regularly scheduled runs. As indicated above, such a use
would appear to be an incidental use.
The fourth question is answered accordingly.
[[Page 29]]
As requested, the correspondence enclosed with your letter is
returned herewith.
Sincerely yours,
Frank H. Weitzel,
Assistant Comptroller General
of the United States.
Enclosures:
The Honorable Bob Wilson, House of Representatives.
March 29, 1976.
Inflationary Impact Statement
final regulations on school bus operations
I certify that, in accordance with Executive Order 11821, dated
November 27, 1974, and Departmental implementing instructions, an
Inflationary Impact Statement is not required for final regulations on
School Bus Operations.
Robert E. Patricelli,
Federal Mass Transit
Administrator.
PART 609_TRANSPORTATION FOR ELDERLY AND HANDICAPPED PERSONS--Table of Contents
Sec.
609.1 Purpose.
609.3 Definitions.
609.5 Applicability.
609.23 Reduced fare.
Appendix A to Part 609--Elderly and Handicapped
Authority: 49 U.S.C. 5307(d) and 5308(b); 23 U.S.C. 134, 135 and
142; 29 U.S.C. 794; 49 CFR 1.51.
Source: 41 FR 18239, Apr. 30, 1976, unless otherwise noted.
Sec. 609.1 Purpose.
The purpose of this part is to establish formally the requirements
of the Federal Transit Administration (FTA) on transportation for
elderly and handicapped persons.
Sec. 609.3 Definitions.
As used herein:
Elderly and handicapped persons means those individuals who, by
reason of illness, injury, age, congenital malfunction, or other
permanent or temporary incapacity or disability, including those who are
nonambulatory wheelchair-bound and those with semi-ambulatory
capabilities, are unable without special facilities or special planning
or design to utilize mass transportation facilities and services as
effectively as persons who are not so affected.
Sec. 609.5 Applicability.
This part, which applies to projects approved by the Federal Transit
Administrator on or after May 31, 1976, applies to all planning,
capital, and operating assistance projects receiving Federal financial
assistance under sections 5307 or 5308 of the Federal transit laws (49
U.S.C. Chapter 53), and nonhighway public mass transportation projects
receiving Federal financial assistance under: (1) Subsection (a) or (c)
of section 142 of title 23, United States Code; and (2) paragraph (4) of
subsection (e) of section 103, title 23, United States Code. However,
under certain circumstances evident in Sec. Sec. 609.13 through 609.21,
the latter sections apply to fixed facilities and vehicles included in
projects approved before May 31, 1976. Sections in this part on capital
assistance applications, fixed facilities, and vehicles apply expressly
to capital assistance projects receiving Federal financial assistance
under any of the above statutes.
[41 FR 18239, Apr. 30, 1976, as amended at 61 FR 19562, May 2, 1996]
Sec. 609.23 Reduced fare.
Applicants for financial assistance under section 5307 of the
Federal transit laws (49 U.S.C. Chapter 53), must, as a condition to
receiving such assistance, give satisfactory assurances, in such manner
and form as may be required by the Federal Transit Administrator and in
accordance with such terms and conditions as the Federal Transit
Administrator may prescribe, that the rates charged elderly and
handicapped persons during non-peak hours for transportation utilizing
or involving the facilities and equipment of the project financed with
assistance under this section will not exceed one-half of the rates
generally applicable to other persons at peak hours, whether the
operation of such facilities and equipment is by the applicant or is by
[[Page 30]]
another entity under lease or otherwise.
[41 FR 18239, Apr. 30, 1976, as amended at 61 FR 19562, May 2, 1996]
Appendix A to Part 609--Elderly and Handicapped
The definitions of the term elderly and handicapped as applied under
FTA's elderly and handicapped half-fare program (49 CFR part 609) shall
apply to this rule. This permits a broader class of handicapped persons
to take advantage of the exception than would be permitted under the
more restrictive definition applied to the non-discrimination provisions
of the Department's section 504 program (49 CFR 27.5), which includes
only handicapped persons otherwise unable to use the recipient's bus
service for the general public.
Accordingly, for the purposes of this part, the definition of
elderly persons may be determined by the FTA recipient but must, at a
minimum, include all persons 65 years of age or over.
Similarly, the definition of handicapped persons is derived from the
existing regulations at 49 CFR 609.3 which provide that Handicapped
persons means those individuals who, by reason of illness, injury, age,
congenital malfunction, or other permanent or temporary incapacity or
disability, including those who are nonambulatory wheelchair-bound and
those with semi-ambulatory capabilities, are unable without special
facilities or special planning or design to utilize mass transportation
facilities and services as effectively as persons who are not so
affected.
To assist in understanding how the definitions might be applied to
administration of the charter rule, the following questions and answers
previously published by FTA for the half-fare program in FTA C 9060.1,
April 20, 1978, are reproduced:
1. Question: Can the definition of elderly or handicapped be
restricted on the basis of residency, citizenship, income, employment
status, or the ability to operate an automobile?
Answer: No. Section 5(m) is applicable to elderly and handicapped
persons. It is FTA's policy that such categorical exceptions are not
permitted under the Act.
2. Question: Can the eligibility of temporary handicaps be
restricted on the basis of their duration?
Answer: Handicaps of less than 90 days duration may be excluded.
Handicaps of more than 90 days duration must be included.
3. Question: Can the definition of handicap be limited in any way?
Answer: FTA has allowed applicants to exclude some conditions which
appear to meet the functional definition of handicap provided in section
5302(a)(5) of the Federal transit laws (49 U.S.C. Chapter 53). These
include pregnancy, obesity, drug or alcohol addiction, and certain
conditions which do not fall under the statutory definition (e.g., loss
of a finger, some chronic heart or lung conditions, controlled epilepsy,
etc.). Individuals may also be excluded whose handicap involves a
contagious disease or poses a danger to the individual or other
passengers. Other exceptions should be reviewed on a case-by-case basis.
4. Question: Is blindness considered a handicap under Section 5(m)?
Answer: Yes.
5. Question: Is deafness considered a handicap under section 5(m)?
Answer: As a rule, no, because deafness, especially on buses, is not
considered a disability which requires special planning, facilities, or
design. However, deafness is recognized as a handicap in the Department
of Transportation's ADA regulation, and applicants for Section 5
assistance are encouraged to include the deaf as eligible for off-peak
half-fares.
6. Question: Is mental illness considered a handicap under section
5(m)?
Answer: As a rule, no, because of the difficulty in establishing
criteria or guidelines for defining eligibility. However, FTA encourages
applicants to provide the broadest possible coverage in defining
eligible handicaps, including mental illness.
7. Question: Can operators delegate the responsibility for
certifying individuals as eligible to other agencies?
Answer: Yes, provided that such agencies administer the
certification of individuals in an acceptable manner and are reasonably
accessible to the elderly and handicapped. Many operators currently make
extensive use of social service agencies (both public and private) to
identify and certify eligible individuals.
8. Question: Can operators require elderly and handicapped
individuals to be recognized by any existing agency (e.g., require that
handicapped persons be receiving Social Service or Veterans'
Administration benefits)?
Answer: Recognition by such agencies is commonly used to certify
eligible individuals. However, such recognition should not be a
mandatory prerequisite for eligibility. For example, many persons with
eligible temporary handicaps may not be recognized as handicapped by
social service agencies.
9. Question: Can the operator require that elderly and handicapped
persons come to a central office to register for an off-peak half-fare
program?
Answer: FTA strongly encourages operators to develop procedures
which maximize the availability of off-peak half-fares to eligible
individuals. Requiring individuals to
[[Page 31]]
travel to a single office which may be inconveniently located is not
consistent with this policy, although it is not strictly prohibited. FTA
reserves the right to review such local requirements on a case-by-case
basis.
10. Question: Must ID cards issued by one operator be transferable
to another?
Answer: No. However, FTA encourages consistency among off-peak
procedures and the maximizing of availability to eligible individuals,
especially among operators within a single urban area. Nevertheless,
each operator is permitted to require its own certification of
individuals using its service.
11. Question: Can an operator require an elderly or handicapped
person to submit to a procedure certifying their eligibility before they
can receive half-fare? For example, if an operator requires eligible
individuals to have a special ID card, can the half-fare be denied to an
individual who can otherwise give proof of age, etc, but does not have
an ID card?
Answer: Yes, although FTA does not endorse this practice.
[53 FR 53356, Dec. 30, 1988. Redesignated and amended at 61 FR 19562,
May 2, 1996]
PART 611_MAJOR CAPITAL INVESTMENT PROJECTS--Table of Contents
Sec.
611.1 Purpose and contents.
611.3 Applicability.
611.5 Definitions.
611.7 Relation to planning and project development processes.
611.9 Project justification criteria for grants and loans for fixed
guideway systems.
611.11 Local financial commitment criteria.
611.13 Overall project ratings.
Appendix A to Part 611--Description of Measures for Project Evaluation.
Authority: 49 U.S.C. 5309; 49 CFR 1.51
Source: 65 FR 76880, Dec. 7, 2000, unless otherwise noted.
Sec. 611.1 Purpose and contents.
(a) This part prescribes the process that applicants must follow to
be considered eligible for capital investment grants and loans for new
fixed guideway systems or extensions to existing systems (``new
starts''). Also, this part prescribes the procedures used by FTA to
evaluate proposed new starts projects as required by 49 U.S.C. 5309(e),
and the scheduling of project reviews required by 49 U.S.C. 5328(a).
(b) This part defines how the results of the evaluation described in
paragraph (a) of this section will be used to:
(1) Approve entry into preliminary engineering and final design, as
required by 49 U.S.C. 309(e)(6);
(2) Rate projects as ``highly recommended,'' ``recommended,'' or
``not recommended,'' as required by 49 U.S.C. 5309(e)(6);
(3) Assign individual ratings for each of the project justification
criteria specified in 49 U.S.C. 5309(e)(1)(B) and (C);
(4) Determine project eligibility for Federal funding commitments,
in the form of Full Funding Grant Agreements;
(5) Support funding recommendations for this program for the
Administration's annual budget request; and
(6) Fulfill the reporting requirements under 49 U.S.C. 5309(o)(1),
Funding Levels and Allocations of Funds, Annual Report, and 5309(o)(2),
Supplemental Report on New Starts.
(c) The information collected and ratings developed under this part
will form the basis for the annual reports to Congress, required by 49
U.S.C. 5309(o)(1) and (2).
Sec. 611.3 Applicability.
(a) This part applies to all proposals for Federal capital
investment funds under 49 U.S.C. 5309 for new transit fixed guideway
systems and extensions to existing systems.
(b) Projects described in paragraph (a) of this section are not
subject to evaluation under this part if the total amount of funding
from 49 U.S.C. 5309 will be less than $25 million, or if such projects
are otherwise exempt from evaluation by statute.
(1) Exempt projects must still be rated by FTA for purposes of
entering into a Federal funding commitment as required by 49 U.S.C.
5309(e)(7). Sponsors who believe their projects to be exempt are
nonetheless strongly encouraged to submit data for project evaluation as
described in this part.
(2) Such projects are still subject to the requirements of 23 CFR
part 450 and 23 CFR part 771.
(3) This part does not apply to projects for which a Full Funding
[[Page 32]]
Grant Agreement (FFGA) has already been executed.
(c) Consistent with 49 U.S.C. 5309(e)(8)(B), FTA will make project
approval decisions on proposed projects using expedited procedures as
appropriate, for proposed projects that are:
(1) Located in a nonattainment area;
(2) Transportation control measures as defined by the Clean Air Act
(42 U.S.C. 7401 et seq.); and
(3) Required to carry out a State Implementation Plan.
Sec. 611.5 Definitions.
The definitions established by Titles 12 and 49 of the United States
Code, the Council on Environmental Quality's regulation at 40 CFR parts
1500-1508, and FHWA-FTA regulations at 23 CFR parts 450 and 771 are
applicable. In addition, the following definitions apply:
Alternatives analysis is a corridor level analysis which evaluates
all reasonable mode and alignment alternatives for addressing a
transportation problem, and results in the adoption of a locally
preferred alternative by the appropriate State and local agencies and
official boards through a public process.
Baseline alternative is the alternative against which the proposed
new starts project is compared to develop project justification
measures. Relative to the no build alternative, it should include
transit improvements lower in cost than the new start which result in a
better ratio of measures of transit mobility compared to cost than the
no build alternative.
BRT means bus rapid transit.
Bus Rapid Transit refers to coordinated improvements in a transit
system's infrastructure, equipment, operations, and technology that give
preferential treatment to buses on fixed guideways and urban roadways.
The intention of Bus Rapid Transit is to reduce bus travel time, improve
service reliability, increase the convenience of users, and ultimately,
increase bus ridership.
Extension to existing fixed-guideway system means a project to
extend an existing fixed guideway system.
FFGA means a Full Funding Grant Agreement.
Final Design is the final phase of project development, and includes
(but is not limited to) the preparation of final construction plans
(including construction management plans), detailed specifications,
construction cost estimates, and bid documents.
Fixed guideway system means a mass transportation facility which
utilizes and occupies a separate right-of-way, or rail line, for the
exclusive use of mass transportation and other high occupancy vehicles,
or uses a fixed catenary system and a right of way usable by other forms
of transportation. This includes, but is not limited to, rapid rail,
light rail, commuter rail, automated guideway transit, people movers,
ferry boat service, and fixed-guideway facilities for buses (such as bus
rapid transit) and other high occupancy vehicles. A new fixed guideway
system means a newly-constructed fixed guideway system in a corridor or
alignment where no such system exists.
FTA means the Federal Transit Administration.
Full Funding Grant Agreement means an instrument that defines the
scope of a project, the Federal financial contribution, and other terms
and conditions.
Major transit investment means any project that involves the
construction of a new fixed guideway system or extension of an existing
fixed guideway system for use by mass transit vehicles.
NEPA process means those procedures necessary to meet the
requirements of the National Environmental Policy Act of 1969, as
amended (NEPA), at 23 CFR part 771; the NEPA process is completed when a
Record of Decision (ROD) or Finding of No Significant Impact (FONSI) is
issued.
New start means a new fixed guideway system, or an extension to an
existing fixed guideway system.
Preliminary Engineering is the process by which the scope of the
proposed project is finalized, estimates of project costs, benefits and
impacts are refined, NEPA requirements are completed, project management
plans and fleet management plans are further developed, and local
funding commitments are put in place.
[[Page 33]]
Secretary means the Secretary of Transportation.
TEA-21 means the Transportation Equity Act for the 21st Century.
Sec. 611.7 Relation to planning and project development processes.
All new start projects proposed for funding assistance under 49 USC
5309 must emerge from the metropolitan and Statewide planning process,
consistent with 23 CFR part 450. To be eligible for FTA capital
investment funding, a proposed project must be based on the results of
alternatives analysis and preliminary engineering.
(a) Alternatives Analysis. (1) To be eligible for FTA capital
investment funding for a major fixed guideway transit project, local
project sponsors must perform an alternatives analysis.
(2) The alternatives analysis develops information on the benefits,
costs, and impacts of alternative strategies to address a transportation
problem in a given corridor, leading to the adoption of a locally
preferred alternative.
(3) The alternative strategies evaluated in an alternatives analysis
must include a no-build alternative, a baseline alternative, and an
appropriate number of build alternatives. Where project sponsors believe
the no-build alternative fulfills the requirements for a baseline
alternative, FTA will determine whether to require a separate baseline
alternative on a case-by-case basis.
(4) The locally preferred alternative must be selected from among
the evaluated alternative strategies and formally adopted and included
in the metropolitan planning organization's financially-constrained
long-range regional transportation plan.
(b) Preliminary Engineering. Consistent with 49 USC 5309(e)(6) and
5328(a)(2), FTA will approve/disapprove entry of a proposed project into
preliminary engineering within 30 days of receipt of a formal request
from the project sponsor(s).
(1) A proposed project can be considered for advancement into
preliminary engineering only if:
(i) Alternatives analysis has been completed
(ii) The proposed project is adopted as the locally preferred
alternative by the Metropolitan Planning Organization into its
financially constrained metropolitan transportation plan;
(iii) Project sponsors have demonstrated adequate technical
capability to carry out preliminary engineering for the proposed
project; and
(iv) All other applicable Federal and FTA program requirements have
been met.
(2) FTA's approval will be based on the results of its evaluation as
described in Sec. Sec. 611.9-611.13.
(3) At a minimum, a proposed project must receive an overall rating
of ``recommended'' to be approved for entry into preliminary
engineering.
(4) This part does not in any way revoke prior FTA approvals to
enter preliminary engineering made prior to February 5, 2001.
(5) Projects approved to advance into preliminary engineering
receive blanket pre-award authority to incur project costs for
preliminary engineering activities prior to grant approval.
(i) This pre-award authority does not constitute a commitment by FTA
that future Federal funds will be approved for this project.
(ii) All Federal requirements must be met prior to incurring costs
in order to retain eligibility of the costs for future FTA grant
assistance.
(c) Final Design. Consistent with 49 USC 5309(e)(6) and 5328(a)(3),
FTA will approve/disapprove entry of a proposed project into final
design within 120 days of receipt of a formal request from the project
sponsor(s).
(1) A proposed project can be considered for advancement into final
design only if:
(i) The NEPA process has been completed;
(ii) Project sponsors have demonstrated adequate technical
capability to carry out final design for the proposed project; and
(iii) All other applicable Federal and FTA program requirements have
been met.
(2) FTA's approval will be based on the results of its evaluation as
described in Parts Sec. Sec. 611.9-611.13 of this Rule.
[[Page 34]]
(3) At a minimum, a proposed project must receive an overall rating
of ``recommended'' to be approved for entry into final design.
(4) Consistent with the Government Performance and Results Act of
1993, project sponsors seeking FFGAs shall submit a complete plan for
collection and analysis of information to identify the impacts of the
new start project and the accuracy of the forecasts prepared during
development of the project.
(i) The plan shall provide for: Collection of ``before'' data on the
current transit system; documentation of the ``predicted'' scope,
service levels, capital costs, operating costs, and ridership of the
project; collection of ``after'' data on the transit system two years
after opening of the new start project; and analysis of the consistency
of ``predicted'' project characteristics with the ``after'' data.
(ii) The ``before'' data collection shall obtain information on
transit service levels and ridership patterns, including origins and
destinations, access modes, trip purposes, and rider characteristics.
The ``after'' data collection shall obtain analogous information on
transit service levels and ridership patterns, plus information on the
as-built scope and capital costs of the new start project.
(iii) The analysis of this information shall describe the impacts of
the new start project on transit services and transit ridership,
evaluate the consistency of ``predicted'' and actual project
characteristics and performance, and identify sources of differences
between ``predicted'' and actual outcomes.
(iv) For funding purposes, preparation of the plan for collection
and analysis of data is an eligible part of the proposed project.
(5) Project sponsors shall collect data on the current system,
according to the plan required under Sec. 611.7(c)(4) as approved by
FTA, prior to the beginning of construction of the proposed new start.
Collection of this data is an eligible part of the proposed project for
funding purposes.
(6) This part does not in any way revoke prior FTA approvals to
enter final design that were made prior to February 5, 2001.
(7) Projects approved to advance into final design receive blanket
pre-award authority to incur project costs for final design activities
prior to grant approval.
(i) This pre-award authority does not extend to right of way
acquisition or construction, nor does it constitute a commitment by FTA
that future Federal funds will be approved for this project.
(ii) All Federal requirements must be met prior to incurring costs
in order to retain eligibility of the costs for future FTA grant
assistance.
(d) Full funding grant agreements. (1) FTA will determine whether to
execute an FFGA based on:
(i) The evaluations and ratings established by this rule;
(ii) The technical capability of project sponsors to complete the
proposed new starts project; and
(iii) A determination by FTA that no outstanding issues exist that
could interfere with successful implementation of the proposed new
starts project.
(2) An FFGA shall not be executed for a project that is not
authorized for final design and construction by Federal law.
(3) FFGAs will be executed only for those projects which:
(i) Are rated as ``recommended'' or ``highly recommended;''
(ii) Have completed the appropriate steps in the project development
process;
(iii) Meet all applicable Federal and FTA program requirements; and
(iv) Are ready to utilize Federal new starts funds, consistent with
available program authorization.
(4) In any instance in which FTA decides to provide financial
assistance under section 5309 for construction of a new start project,
FTA will negotiate an FFGA with the grantee during final design of that
project. Pursuant to the terms and conditions of the FFGA:
(i) A maximum level of Federal financial contribution under the
section 5309 new starts program will be fixed;
(ii) The grantee will be required to complete construction of the
project, as defined, to the point of initiation of revenue operations,
and to absorb any additional costs incurred or necessitated;
[[Page 35]]
(iii) FTA and the grantee will establish a schedule for anticipating
Federal contributions during the final design and construction period;
and
(iv) Specific annual contributions under the FFGA will be subject to
the availability of budget authority and the ability of the grantee to
use the funds effectively.
(5) The total amount of Federal obligations under Full Funding Grant
Agreements and potential obligations under Letters of Intent will not
exceed the amount authorized for new starts under 49 U.S.C. Sec. 5309.
(6) FTA may also make a ``contingent commitment,'' which is subject
to future congressional authorizations and appropriations, pursuant to
49 U.S.C. 5309(g), 5338(b), and 5338(h).
(7) Consistent with the Government Performance and Results Act of
1993 (GPRA), the FFGA will require implementation of the data collection
plan prepared in accordance with Sec. 611.7(c)(4):
(i) Prior to the beginning of construction activities the grantee
shall collect the ``before'' data on the existing system, if such data
has not already been collected as part of final design, and document the
predicted characteristics and performance of the project.
(ii) Two years after the project opens for revenue service, the
grantee shall collect the ``after'' data on the transit system and the
new start project, determine the impacts of the project, analyze the
consistency of the ``predicted'' performance of the project with the
``after'' data, and report the findings and supporting data to FTA.
(iii) For funding purposes, collection of the ``before'' data,
collection of the ``after'' data, and the development and reporting of
findings are eligible parts of the proposed project.
(8) This part does not in any way alter, revoke, or require re-
evaluation of existing FFGAs that were issued prior to February 5, 2001.
Sec. 611.9 Project justification criteria for grants and loans for fixed guideway systems.
In order to approve a grant or loan for a proposed new starts
project under 49 U.S.C. 5309, and to approve entry into preliminary
engineering and final design as required by section 5309(e)(6), FTA must
find that the proposed project is justified as described in section
5309(e)(1)(B).
(a) To make the statutory evaluations and assign ratings for project
justification, FTA will evaluate information developed locally through
alternatives analyses and refined through preliminary engineering and
final design.
(1) The method used to make this determination will be a multiple
measure approach in which the merits of candidate projects will be
evaluated in terms of each of the criteria specified by this section.
(2) The measures for these criteria are specified in Appendix A to
this rule.
(3) The measures will be applied to the project as it has been
proposed to FTA for new starts funding under 49 U.S.C. 5309.
(4) The ratings for each of the criteria will be expressed in terms
of descriptive indicators, as follows: ``high,'' ``medium-high,''
``medium,'' ``low-medium,'' or ``low.''
(b) The criteria are as follows:
(1) Mobility Improvements.
(2) Environmental Benefits.
(3) Operating Efficiencies.
(4) Transportation System User Benefits (Cost-Effectiveness).
(5) Existing land use, transit supportive land use policies, and
future patterns.
(6) Other factors. Additional factors, including but not limited to:
(i) The degree to which the programs and policies (e.g., parking
policies, etc.) are in place as assumed in the forecasts,
(ii) Project management capability, including the technical
capability of the grant recipient to construct the project, and
(iii) Additional factors relevant to local and national priorities
and relevant to the success of the project.
(c) In evaluating proposed new starts projects under these criteria:
(1) As a candidate project proceeds through preliminary engineering
and final design, a greater degree of certainty is expected with respect
to the scope of the project and a greater level
[[Page 36]]
of commitment is expected with respect to land use.
(2) For the criteria under Sec. 611.9(b)(1)-(4), the proposed new
start will be compared to the baseline alternative.
(d) In evaluating proposed new starts projects under these criteria,
the following factors shall be considered:
(1) The direct and indirect costs of relevant alternatives;
(2) Factors such as congestion relief, improved mobility, air
pollution, noise pollution, energy consumption, and all associated
ancillary and mitigation costs necessary to carry out each alternative
analyzed, and recognize reductions in local infrastructure costs
achieved through compact land use development;
(3) Existing land use, mass transportation supportive land use
policies, and future patterns;
(4) The degree to which the project increases the mobility of the
mass transportation dependent population or promotes economic
development;
(5) Population density and current transit ridership in the
corridor;
(6) The technical capability of the grant recipient to construct the
project;
(7) Differences in local land, construction, and operating costs;
and
(8) Other factors as appropriate.
(e) FTA may amend the measures for these criteria, pending the
results of ongoing studies regarding transit benefit evaluation methods.
(f) The individual ratings for each of the criteria described in
this section will be combined into a summary rating of ``high,''
``medium-high,'' ``medium,'' ``low-medium,'' or ``low'' for project
justification. ``Other factors'' will be considered as appropriate.
Sec. 611.11 Local financial commitment criteria.
In order to approve a grant or loan under 49 U.S.C. 5309, FTA must
find that the proposed project is supported by an acceptable degree of
local financial commitment, as required by section 5309(e)(1)(C). The
local financial commitment to a proposed project will be evaluated
according to the following measures:
(a) The proposed share of project capital costs to be met using
funds from sources other than the section 5309 new starts program,
including both the non-Federal match required by Federal law and any
additional capital funding (``overmatch''), and the degree to which
planning and preliminary engineering activities have been carried out
without funding from the section 5309 new starts program;
(b) The stability and reliability of the proposed capital financing
plan for the new starts project; and
(c) The stability and reliability of the proposed operating
financing plan to fund operation of the entire transit system as planned
over a 20-year planning horizon.
(d) For each proposed project, ratings for paragraphs (b) and (c) of
this section will be reported in terms of descriptive indicators, as
follows: ``high,'' ``medium-high,'' ``medium,'' ``low-medium,'' or
``low.'' For paragraph (a) of this section, the percentage of Federal
funding sought from 49 U.S.C. Sec. 5309 will be reported.
(e) The summary ratings for each measure described in this section
will be combined into a summary rating of ``high,'' ``medium-high,''
``medium,'' ``low-medium,'' or ``low'' for local financial commitment.
Sec. 611.13 Overall project ratings.
(a) The summary ratings developed for project justification local
financial commitment (Sec. Sec. 611.9 and 611.11) will form the basis
for the overall rating for each project.
(b) FTA will assign overall ratings of ``highly recommended,''
``recommended,'' and ``not recommended,'' as required by 49 U.S.C.
5309(e)(6), to each proposed project.
(1) These ratings will indicate the overall merit of a proposed new
starts project at the time of evaluation.
(2) Ratings for individual projects will be updated annually for
purposes of the annual report on funding levels and allocations of funds
required by section 5309(o)(1), and as required for FTA approvals to
enter into preliminary engineering, final design, or FFGAs.
(c) These ratings will be used to:
(1) approve advancement of a proposed project into preliminary
engineering and final design;
[[Page 37]]
(2) Approve projects for FFGAs;
(3) Support annual funding recommendations to Congress in the annual
report on funding levels and allocations of funds required by 49 U.S.C.
5309(o)(1); and
(4) For purposes of the supplemental report on new starts, as
required under section 5309(o)(2).
(d) FTA will assign overall ratings for proposed new starts projects
based on the following conditions:
(1) Projects will be rated as ``recommended'' if they receive a
summary rating of at least ``medium'' for both project justification
(Sec. 611.9) and local financial commitment (Sec. 611.11);
(2) Projects will be rated as ``highly recommended'' if they receive
a summary rating higher than ``medium'' for both local financial
commitment and project justification.
(3) Projects will be rated as ``not recommended'' if they do not
receive a summary rating of at least ``medium'' for both project
justification and local financial commitment.
Appendix A to Part 611--Description of Measures Used for Project
Evaluation.
Project Justification
FTA will use several measures to evaluate candidate new starts
projects according to the criteria established by 49 U.S.C.
5309(e)(1)(B). These measures have been developed according to the
considerations identified at 49 U.S.C. 5309(e)(3) (``Project
Justification''), consistent with Executive Order 12893. From time to
time, FTA has published technical guidance on the application of these
measures, and the agency expects it will continue to do so. Moreover,
FTA may well choose to amend these measures, pending the results of
ongoing studies regarding transit benefit evaluation methods. The first
four criteria listed below assess the benefits of a proposed new start
project by comparing the project to the baseline alternative. Therefore,
the baseline alternative must be defined so that comparisons with the
new start project isolate the costs and benefits of the major transit
investment. At a minimum, the baseline alternative must include in the
project corridor all reasonable cost-effective transit improvements
short of investment in the new start project. Depending on the
circumstances and through prior agreement with FTA, the baseline
alternative can be defined appropriately in one of three ways. First,
where the adopted financially constrained regional transportation plan
includes within the corridor all reasonable cost-effective transit
improvements short of the new start project, a no-build alternative that
includes those improvements may serve as the baseline. Second, where
additional cost-effective transit improvements can be made beyond those
provided by the adopted plan, the baseline will add those cost-effective
transit improvements. Third, where the proposed new start project is
part of a multimodal alternative that includes major highway components,
the baseline alternative will be the preferred multimodal alternative
without the new start project and associated transit services. Prior to
submittal of a request to enter preliminary engineering for the new
start project, grantees must obtain FTA approval of the definition of
the baseline alternative. Consistent with the requirement that
differences between the new start project and the baseline alternative
measure only the benefits and costs of the project itself, planning
factors external to the new start project and its supporting bus service
must be the same for both the baseline and new start project
alternatives. Consequently, the highway and transit networks defined for
the analysis must be the same outside the corridor for which the new
start project is proposed. Further, policies affecting travel demand and
travel costs, such as land use, transit fares and parking costs, must be
applied consistently to both the baseline alternative and the new start
project alternative. The fifth criterion, ``existing land use, transit
supportive land use policies, and future patterns,'' reflects the
importance of transit-supportive local land use and related conditions
and policies as an indicator of ultimate project success.
(a) Mobility Improvements.
(1) The aggregate travel time savings in the forecast year
anticipated from the new start project compared to the baseline
alternative. This measure sums the travel time savings accruing to
travelers projected to use transit in the baseline alternative,
travelers projected to shift to transit because of the new start
project, and non-transit users in the new start project who would
benefit from reduced traffic congestion.
(i) After September 1, 2001, FTA will employ a revised measure of
travel benefits accruing to travelers.
(ii) The revised measure will be based on a multi-modal measure of
perceived travel times faced by all users of the transportation system.
(2) The absolute number of existing low income households located
within \1/2\-mile of boarding points associated with the proposed system
increment.
(3) The absolute number of existing jobs within \1/2\-mile of
boarding points associated with the proposed system increment.
(b) Environmental Benefits.
[[Page 38]]
(1) The forecast change in criteria pollutant emissions and in
greenhouse gas emissions, ascribable to the proposed new investment,
calculated in terms of annual tons for each criteria pollutant or gas
(forecast year), compared to the baseline alternative;
(2) The forecast net change per year (forecast year) in the regional
consumption of energy, ascribable to the proposed new investment,
expressed in British Thermal Units (BTU), compared to the baseline
alternative; and
(3) Current Environmental Protection Agency designations for the
region's compliance with National Ambient Air Quality Standards.
(c) Operating Efficiencies. The forecast change in operating cost
per passenger-mile (forecast year), for the entire transit system. The
new start will be compared to the baseline alternative.
(d) Transportation System User Benefits (Cost-Effectiveness).
(1) The cost effectiveness of a proposed project shall be evaluated
according to a measure of transportation system user benefits, based on
a multimodal measure of perceived travel times faced by all users of the
transportation system, for the forecast year, divided by the incremental
cost of the proposed project. Incremental costs and benefits will be
calculated as the differences between the proposed new start and the
baseline alternative.
(2) Until the effective date of the transportation system user
benefits measure of cost effectiveness, cost effectiveness will be
computed as the incremental costs of the proposed project divided by its
incremental transit ridership, as compared to the baseline alternative.
(i) Costs include the forecast annualized capital and annual
operating costs of the entire transit system.
(ii) Ridership includes forecast total annual ridership on the
entire transit system, excluding transfers.
(e) Existing land use, transit supportive land use policies, and
future patterns. Existing land use, transit-supportive land use
policies, and future patterns shall be rated by evaluating existing
conditions in the corridor and the degree to which local land use
policies are likely to foster transit supportive land use, measured in
terms of the kinds of policies in place, and the commitment to these
policies. The following factors will form the basis for this evaluation:
(1) Existing land use;
(2) Impact of proposed new starts project on land use;
(3) Growth-management policies;
(4) Transit-supportive corridor policies;
(5) Supportive zoning regulations near transit stations;
(6) Tools to implement land use policies;
(7) The performance of land use policies; and
(8) Existing and planned pedestrian facilities, including access for
persons with disabilities.
(f) Other factors. Other factors that will be considered when
evaluating projects for funding commitments include, but are not limited
to:
(1) Multimodal emphasis of the locally preferred investment
strategy, including the proposed new start as one element;
(2) Environmental justice considerations and equity issues,
(3) Opportunities for increased access to employment for low income
persons, and Welfare-to-Work initiatives;
(4) Livable Communities initiatives and local economic activities;
(5) Consideration of alternative land use development scenarios in
local evaluation and decision making for the locally preferred transit
investment decision;
(6) Consideration of innovative financing, procurement, and
construction techniques, including design-build turnkey applications;
and
(7) Additional factors relevant to local and national priorities and
to the success of the project, such as Empowerment Zones, Brownfields,
and FTA's Bus Rapid Transit Demonstration Program.
Local Financial Commitment
FTA will use the following measures to evaluate the local financial
commitment to a proposed project:
(a) The proposed share of project capital costs to be met using
funds from sources other than the 49 U.S.C. 5309 new starts program,
including both the local match required by Federal law and any
additional capital funding (``overmatch''). Consideration will be given
to:
(i) The use of innovative financing techniques, as described in the
May 9, 1995, Federal Register notice on FTA's Innovative Financing
Initiative (60 FR 24682);
(ii) The use of ``flexible funds'' as provided under the CMAQ and
STP programs;
(iii) The degree to which alternatives analysis and preliminary
engineering activities were carried out without funding from the Sec.
5309 new starts program; and
(iv) The actual percentage of the cost of recently-completed or
simultaneously undertaken fixed guideway systems and extensions that are
related to the proposed project under review, from sources other than
the section 5309 new starts program (FTA's intent is to recognize that a
region's local financial commitment to fixed guideway systems and
extensions may not be limited to a single project).
(b) The stability and reliability of the proposed capital financing
plan, according to:
[[Page 39]]
(i) The stability, reliability, and level of commitment of each
proposed source of local match, including inter-governmental grants, tax
sources, and debt obligations, with an emphasis on availability within
the project development timetable;
(ii) Whether adequate provisions have been made to cover
unanticipated cost overruns and funding shortfalls; and
(iii) Whether adequate provisions have been made to fund the capital
needs of the entire transit system as planned, including key station
plans as required under 49 CFR 37.47 and 37.51, over a 20-year planning
horizon period.
(c) The stability and reliability of the proposed operating
financing plan to fund operation of the entire transit system as planned
over a 20-year planning horizon.
PART 613_PLANNING ASSISTANCE AND STANDARDS--Table of Contents
Subpart A_Metropolitan Transportation Planning and Programming
Sec.
613.100 Metropolitan transportation planning and programming.
Subpart B_Statewide Transportation Planning and Programming
613.200 Statewide transportation planning and programming.
Subpart C_Coordination of Federal and Federally Assisted Programs and
Projects
613.300 Coordination of Federal and federally assisted programs and
projects.
Authority: 23 U.S.C. 134, 135, and 217(g); 42 U.S.C. 3334, 4233,
4332, 7410 et seq; 49 U.S.C. 5303-5306, 5323(k); and 49 CFR 1.48(b),
1.51(f) and 21.7(a).
Subpart A_Metropolitan Transportation Planning and Programming
Sec. 613.100 Metropolitan transportation planning and programming.
The regulations in 23 CFR part 450, subpart C, shall be followed in
complying with the requirements of this subpart. 23 CFR part 450,
subpart C, requires a metropolitan planning organization (MPO) be
designated for each urbanized area and that the metropolitan area have a
continuing, cooperative, and comprehensive transportation planning
process that results in plans and programs that consider all
transportation modes. These plans and programs shall lead to the
development of an integrated, intermodal metropolitan transportation
system that facilitates the efficient, economic movement of people and
goods.
[58 FR 58079, Oct. 28, 1993]
Subpart B_Statewide Transportation Planning and Programming
Sec. 613.200 Statewide transportation planning and programming.
The regulations in 23 CFR part 450, subpart B, should be followed in
complying with the requirements of this subpart. 23 CFR part 450,
subpart B, requires each State to carry out an intermodal statewide
transportation planning process, including the development of a
statewide transportation plan and transportation improvement program
that facilitates the efficient, economic movement of people and goods in
all areas of the State, including those areas subject to the
requirements of 23 U.S.C. 135 and sections 3, 5, 8, 9 and 26 of the
Federal Transit Act (49 U.S.C. app. 1602, 1604, 1607, 1607a, and 1622).
[58 FR 58079, Oct. 28, 1993]
Subpart C_Coordination of Federal and Federally Assisted Programs and
Projects
Sec. 613.300 Coordination of Federal and federally assisted programs and projects.
The coordination of Federal and federally assisted programs and
projects implementing OMB revised Circular No. A-95, which are set forth
in 23 CFR part 420, subpart C, are incorporated into this subpart.
[41 FR 33443, Aug. 9, 1976]
PART 614_TRANSPORTATION INFRASTRUCTURE MANAGEMENT--Table of Contents
Authority: 23 U.S.C. 303; 49 U.S.C. 5303-5305; and 49 CFR 1.48 and
1.51.
Source: 61 FR 67175, Dec. 19, 1996, unless otherwise noted.
[[Page 40]]
Sec. 614.101 Cross-reference to management systems.
The regulations in 23 CFR Part 500, subparts A and B shall be
followed in complying with the requirements of this part. Part 500,
subparts A and B implement 23 U.S.C. 303 for State development,
establishment, and implementation of systems for managing traffic
congestion (CMS), public transportation facilities and equipment (PTMS),
intermodal transportation facilities and systems (IMS), and traffic
monitoring for highways and public transportation facilities and
equipment.
PART 622_ENVIRONMENTAL IMPACT AND RELATED PROCEDURES--Table of Contents
Subpart A_Environmental Procedures
Sec.
622.101 Cross-reference to procedures.
Subpart B [Reserved]
Subpart C_Requirements for Energy Assessments
622.301 Buildings.
Subpart A_Environmental Procedures
Authority: 42 U.S.C. 4321 et seq.; 49 U.S.C. 303(c), 5301(e), 5323,
and 5324; 40 CFR 1.51.
Sec. 622.101 Cross-reference to procedures.
The procedures for complying with the National Environmental Policy
Act of 1969, as amended (42 U.S.C. 4321 et seq.), and related statutes,
regulations, and orders are set forth in part 771 of title 23 of the
Code of Federal Regulations.
[52 FR 32660, Aug. 28, 1987]
Subpart B [Reserved]
Subpart C_Requirements for Energy Assessments
Authority: Sec. 403(b), Pub. L. 95-620; E.O. 12185.
Sec. 622.301 Buildings.
(a) FTA assistance for the construction, reconstruction, or
modification of buildings for which applications are submitted to FTA
after October 1, 1980, will be approved only after the completion of an
energy assessment. An energy assessment shall consist of an analysis of
the total energy requirements of a building, within the scope of the
proposed construction activity and at a level of detail appropriate to
that scope, which considers:
(1) Overall design of the facility or modification, and alternative
designs;
(2) Materials and techniques used in construction or rehabilitation;
(3) Special or innovative conservation features that may be used;
(4) Fuel requirements for heating, cooling, and operations essential
to the function of the structure, projected over the life of the
facility and including projected costs of this fuel; and
(5) Kind of energy to be used, including:
(i) Consideration of opportunities for using fuels other than
petroleum and natural gas, and
(ii) Consideration of using alternative, renewable energy sources.
(b) Compliance with the requirements of paragraph (a) of this
section shall be documented as part of the Environmental Assessment or
Environmental Impact Statement for projects which are subject to a
requirement for one. Projects for which there is no environmental
assessment or EIS shall document compliance by submission of appropriate
material with the application for FTA assistance for actual
construction.
(c) The cost of undertaking and documenting an energy assessment may
be eligible for FTA participation if the requirements of Federal
Management Circular 74-4 (A-87) are met.
(d) This requirement shall not apply to projects for which the final
project application or environmental assessment have been submitted to
FTA prior to October 1, 1980.
[45 FR 58038, Aug. 29, 1980]
[[Page 41]]
PART 624_CLEAN FUELS FORMULA GRANT PROGRAM--Table of Contents
Sec.
624.1 Eligible applicant.
624.3 Eligible activities.
624.5 Application process.
624.7 Certification.
624.9 Formula.
624.11 Reporting.
Appendix A to Part 624--Pre-Application Worksheet
Authority: 49 U.S.C. 5308; 49 CFR 1.51.
Source: 67 FR 40104, June 11, 2002, unless otherwise noted.
Sec. 624.1 Eligible applicant.
(a) An eligible applicant is a designated recipient (designated
recipient has the same meaning as in 49 U.S.C. 5307(a)(2)) in either an:
(1) Ozone and carbon monoxide nonattainment areas that have the
specific classifications established by the 1990 Clean Air Act
Amendments [Public Law 101-549], or
(2) Ozone and carbon monoxide (CO) ``maintenance'' areas that,
before they were redesignated to attainment by the Environmental
Protection Agency (EPA), had these same classifications.
(b) The nonattainment classifications for ozone are ``marginal,''
``moderate,'' ``serious,'' ``severe,'' and ``extreme.'' The
nonattainment classifications for CO are ``moderate'' and ``serious.''
Sec. 624.3 Eligible activities.
(a) Eligible activities include the purchase or lease of clean fuel
buses and facilities, repowering or retrofitting buses to operate on
clean fuels, and the improvement of existing facilities to accommodate
clean fuel buses.
(b) The term ``clean fuel vehicle'' means a vehicle that--
(1) Is powered by--
(i) Compressed natural gas;
(ii) Liquefied natural gas;
(iii) Biodiesel fuels;
(iv) Batteries;
(v) Alcohol-based fuels;
(vi) Hybrid electric;
(vii) Fuel cells;
(viii) Clean diesel, to the extent allowed under this section; or
(ix) Other low or zero emissions technology; and
(2) The Administrator of the Environmental Protection Agency has
certified sufficiently reduces harmful emissions.
(c) Eligible projects are the following:
(1) Purchasing or leasing clean fuel buses, including buses that
employ a lightweight composite primary structure, and vans for use in
revenue service. The purchase or lease of non-revenue vehicles is not an
eligible project.
(2) Constructing or leasing clean fuel bus facilities or electrical
recharging facilities and related equipment. Facilities and related
equipment for clean diesel buses are not eligible.
(3) Improving existing mass transportation facilities to accommodate
clean fuel buses.
(4) Repowering pre-1993 engines with clean fuel technology that
meets the current urban bus emission standards. Repowering means the
removal of an engine from a bus followed by the installation of another
engine and applies to engines that are replaced with new, previously
unused, engines as well as those exchanged from an inventory of rebuilt
engines.
(5) Retrofitting or rebuilding pre-1993 engines if before half life
(e.g., prior to six years of bus life) to rebuild; ``retrofit'' means
use of the latest after-market technology such as ``upgrade kits,'' or
after-treatment devices that treat the exhaust after it has left the
engine, such as catalytic converters and particulate filters.
(6) At the discretion of FTA, projects relating to clean fuel,
biodiesel, hybrid electric, or zero emissions technology vehicles that
achieve emissions reductions equivalent or superior to existing clean
fuel or hybrid electric technologies.
Sec. 624.5 Application process.
(a) Pre-applications must be submitted to the appropriate FTA
regional office no later than January 1 of each fiscal year. Subject to
the availability of funds, FTA will apportion the funds based on the
formula and the pool of applicants, no later than February 1 of each
year. Once the applicant has been notified of the apportionment of funds
and the eligibility of its application, it should proceed to complete
and file the final application. The final application
[[Page 42]]
must be submitted electronically if the grantee is using the electronic
application process (i.e., TEAM).
(b) The pre-application consists of a Letter of Interest and a Pre-
application Worksheet as described as follows:
(1) Letter of interest. This letter serves as the cover letter for
the Pre-application Worksheet, expressing interest in submitting an
application. It describes the overall clean fuel technology program of
the agency, including the technology selected, describes the necessary
infrastructure to support the program and the long-range objectives of
the program including the eventual size of the clean fuel fleet. It
summarizes the eligible activities for which the agency is applying and
the amount of funds that the agency is seeking.
(2) Pre-application worksheet. Applicants must use the worksheet
found in Appendix A to this part.
Sec. 624.7 Certification.
The applicant must use the certification contained in the Annual
Notice of Assurances and Certifications published in the Federal
Register each October.
Sec. 624.9 Formula.
The Clean Fuels Formula funds will be apportioned according to the
following formula:
(a) Areas with population 1,000,000 and above. Two thirds of the
funds available each fiscal year shall be apportioned to applicants with
eligible projects in urban areas with a population of 1,000,000 and
above. Of this, 50 percent shall be apportioned so that each applicant
receives a grant in an amount equal to the ratio between:
(1) The number of vehicles in the bus fleet of the eligible
applicant, weighted by the severity of nonattainment for the area in
which the eligible applicant is located; and
(2) The total number of vehicles in the bus fleets of all eligible
applicants in areas with a population of 1,000,000 and above, weighted
by the severity of nonattainment for all areas in which those eligible
projects are located as provided in paragraphs (c) and (d) of this
section. The remaining 50 percent shall be apportioned such that each
designated recipient receives a grant in an amount equal to the ratio
between:
(i) The number of bus passenger miles of the eligible designated
recipient, weighted by the severity of nonattainment of the area in
which the eligible applicant is located as provided in paragraphs (c)
and (d) of this section.
(ii) The total number of bus passenger miles of all eligible
applicants in areas with a population of 1,000,000 and above, weighted
by the severity of nonattainment of all areas in which those eligible
applicants are located as provided in paragraphs (c) and (d) of this
section.
(b) Areas under 1,000,000 population. The formula for areas under
1,000,000 in population is the same as paragraph (a) of this section,
except the formula removes the pool of eligible applicants in areas with
a population of 1,000,000 and above and replaces it with the pool of
eligible applicants in areas with populations under 1,000,000.
(c) Weighting factors. (1) The weighting factor for ozone shall be
determined based on the following factors.
(i) 1.0 if, at the time of the apportionment, the area is a
maintenance area for ozone;
(ii) 1.1 if, at the time of the apportionment, the area is
classified as a marginal ozone nonattainment area;
(iii) 1.2 if, at the time of the apportionment, the area is
classified as a moderate ozone nonattainment area;
(iv) 1.3 if, at the time of the apportionment, the area is
classified as a serious ozone nonattainment area;
(v) 1.4 if, at the time of the apportionment, the area is classified
as a severe ozone nonattainment area;
(vi) 1.5 if, at the time of the apportionment, the area is
classified as an extreme ozone nonattainment area;
(2) The weighting factor for CO shall be determined based on the
factors:
(i) 1.0 if, at the time of the apportionment, the area is a
maintenance area for carbon monoxide;
(ii) 1.2 if, at the time of the apportionment, the area is
classified as a moderate carbon monoxide nonattainment area;
[[Page 43]]
(iii) 1.3 if, at the time of the apportionment, the area is
classified as a serious carbon monoxide nonattainment area.
(3) The number of buses in the fleet and the bus passenger miles
shall be multiplied by the higher of the ozone or CO factors.
(d) Additional adjustment. The number of buses in the fleet and the
bus passenger miles shall be further multiplied by a factor of 1.2 if
the area is both nonattainment for CO and either nonattainment or
maintenance for ozone.
(e) Limitation on uses. (1) Not less than 5 percent of the amount
made available by or appropriated under 49 U.S.C. 5338 in each fiscal
year to carry out this section shall be available for any eligible
projects for which an application is received from a designated
recipient for the purchase or construction of hybrid electric or
battery-powered buses or facilities specifically designed to service
those buses.
(2) Not more than 35 percent of the amount made available by or
appropriated under 49 U.S.C. 5338 in each fiscal year to carry out this
section may be made available to fund clean diesel buses.
(3) Not more than 5 percent of the amount made available by or
appropriated under 49 U.S.C. 5338 in each fiscal year to carry out this
section may be made available to fund 21 retrofitting or replacement of
the engines of buses that do not meet the clean air standards of the
Environmental Protection Agency, as in effect on the date on which the
application for such retrofitting or replacement is submitted under
Sec. 624.5.
Note to Sec. 624.9. Maximum grant amount. The amount of a grant
made to a designated recipient under this section shall not exceed the
lesser of--for an eligible project in an area with a population of less
than 1,000,000, $15,000,000,--and for an eligible project in an area
with a population of at least 1,000,000, $25,000,000; or 80 percent of
the total cost of the eligible project. Any amounts that would otherwise
be apportioned to a designated reciipient under this Note that exceed
the amount described in this Note shall be reapportioned among other
designated recipients in accordance with this section.
[67 FR 41579, June 18, 2002]
Sec. 624.11 Reporting.
(a) Recipients of financial assistance under 49 U.S.C. 5308 who
purchase or lease hybrid electric, battery electric and fuel cell
vehicles must report to the appropriate FTA regional office on a
quarterly basis for the first three years of the useful life of the
vehicle with the following information:
(1) Vehicle miles traveled;
(2) Fuel/energy costs;
(3) Vehicle fuel/energy consumption and oil consumption;
(4) Number of road calls or breakdowns resulting from clean fuel and
advanced propulsion technology systems, and
(5) Maintenance costs associated with the clean fuels or advanced
propulsion system.
(b) Recipients of financial assistance under 49 U.S.C. 5308 who
purchase or lease compressed natural gas (CNG), liquefied natural gas
(LNG), and liquefied petroleum gas (LPG) vehicles may report the
information described in paragraph (a) of this section, but this
reporting is voluntary.
(c) Recipients of financial assistance under 49 U.S.C. 5308 who
purchase or lease clean diesel vehicles should not report information
beyond the normal FTA quarterly reporting requirements.
Appendix A to Part 624--Pre-Application Worksheet
The following are instructions for completing the pre-application
worksheet:
(1) Requesting Agency. Fill in the name of the applicant. The
applicant must be a designated recipient.
(2) UZA (or Urban Area). List the name of the urbanized area if the
applicant is located in an urbanized area. Otherwise, indicate the name
of the city or town.
(3) Nonattainment or Maintenance Area Name. List the name of the
nonattainment or maintenance area in which your agency provides service.
(4) Classification for Ozone. List the current EPA nonattainment
classification for your service area. (The classification must be of the
following terms: marginal, moderate, serious, severe, or extreme.)
(5) Classification for Carbon Monoxide. List the current EPA
nonattainment classification for your service area. (The classification
must be either moderate or serious.)
[[Page 44]]
I. Proposed activity.
(1) New Bus Purchase/Lease. Enter the number of vans or buses by
fuel category in the pre-application. For hybrid electric vehicles,
include fuel types. Indicate whether the structure is lightweight
composite or traditional structure and weight. Enter the total and
Federal amount for each fuel type.
(2) Construct/Lease New Clean Fuel Facility and Related Equipment.
Indicate the Federal and total amount for a clean fuels facility,
related equipment or electrical recharging facility. Enter any
descriptive or explanatory information on the lines for additional
information, including what fuel type is being accommodated. Facilities
to accommodate clean diesel are not eligible.
(3) Indicate the Federal amount and total amount for improvements to
existing facilities to accommodate clean fuel buses. Enter any
descriptive or explanatory information on the line for additional items,
including what fuel type is being accommodated.
(4) Indicate the Federal amount and total amount for repowering/
replacing pre-1993 engines with engines that meet current emissions
standards when installed. Please include a separate entry for each fuel
type. For the purposes of this program, repowering/replacement means the
removal of an engine from the bus followed by the installation of
another engine. This applies to engines that are replaced with new,
previously unused engines, as well as those exchanged from an inventory
of rebuilt engines.
(5) Enter a quantity, Federal amount, and total amount by fuel type
for retrofit/rebuild of pre-1993 engines to comply with latest EPA-
certified emissions standards. For the purposes of this program,
``retrofit'' means the use of the latest after-market technology such as
``upgrade kits,'' or after-treatment device(s) that treat the exhaust
after it has left the engine, such as catalytic converters or
particulate filters. ``Before the half-life rebuild'' means that the
retrofitting would need to occur before the bus is six years old. Since
this provision applies to pre-1993 engines, this provision is of limited
time availability.
(6) This section should describe any proposed clean fuel project not
included in the categories above. Since any project not included above
requires approval at the discretion of FTA, projects included here
should also be described in the letter of interest. Include the Federal
amount and total.
(7) Summary. Indicate the Totals for the Federal and Total Amounts
requested for all projects listed in this Section I.
II. Data
This section contains the active bus fleet and annual bus passenger
miles information that is required to run the Clean Fuels formula.
(1) Enter the number of buses in the active fixed route fleet. For
this purpose, ``bus'' includes articulated motorbus, Class A bus
(35 seats), Class B bus (25-35 seats), Class C bus (<25
seats), double-decked bus, school bus, and electric trolley bus. Use NTD
data that was reported 2 years prior (e.g., if applying in FY 2003, use
data from FY 2001). For UZAs that have already submitted information to
the National Transit Database (NTD), add the data from column H of Form
408 for the following vehicle types: AB, BA, BB, BC, DD, SB, and TB.
(These vehicle types are defined in reporter's guidance for the NTD.)
(2) Enter the fixed route annual bus passenger miles for 2 years
prior (e.g., if applying in FY 2003, use data from FY 2001. This may
include motorbus (see types above) or trolley bus. For UZAs that have
submitted NTD data, add the information from column I of line 25 of Form
406 for the modes MB and TB.
III. Projects Subject to Minimum/Maximum Apportionments
This section provides a dollar total for the areas that are affected
by either maximum or minimum constraints. These constraints apply to the
entire program and not to individual applicants. However, in order to
comply with these constraints, FTA must know how much each applicant is
applying for in each of these areas.
(1) Enter the total Federal dollar amount for the purchase/lease of
clean diesel vehicles.
(2) Enter the total Federal dollar amount for project elements that
fall into the category of purchasing hybrid electric or battery-powered
buses or constructing facilities designed to service them.
(3) Enter the total Federal dollar amount for project elements that
fall into the category of retrofitting or replacing bus engines that do
not meet the clean air standards of the EPA.
Note: Because of the uncertainty of how many grantees will apply,
the actual amount that a grantee receives in an apportionment may be
different from the amount requested in the application that was
submitted. Furthermore, because clean diesel and retrofit/replacement of
bus engines are subject to maximum constraints, the amounts specifically
apportioned for those purposes may not resemble the proportionality of
the application. For example, suppose Grantee A's application included
$500,000 for clean diesel and $100,000 for a compressed natural gas bus.
If the 35 percent ceiling for clean diesel is exceeded by the total
applications, Grantee A may only be allowed $50,000 to be used
specifically for clean diesel because of the ceiling. The remainder of
the funds apportioned to Grantee A (say, $300,000) would have to be used
in areas without a maximum constraint, i.e., in areas other than clean
diesel
[[Page 45]]
or retrofit/replacement of bus engines if applied for.
IV. Certification
The chief executive officer or the general manager of the transit
agency should sign this certification.
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PART 630_UNIFORM SYSTEM OF ACCOUNTS AND RECORDS AND REPORTING SYSTEM--Table of Contents
Sec.
630.1 Purpose.
630.2 Scope.
630.3 Definitions.
630.4 Requirements.
630.5 Failure to report data.
630.6 Late and incomplete reports.
630.7 Failure to respond to questions.
630.8 Questionable data items.
630.9 Notice of FTA action.
630.10 Waiver of reporting requirements.
630.11 Data adjustments.
630.12 Display of OMB control numbers.
Appendix A to Part 630--Overview and Explanation of the Urban Mass
Transportation Industry Uniform System of Accounts and Records
and Reporting System
Authority: Sec. 111, Pub. L. 93-503, 88 Stat. 1573 (49 U.S.C. 1611);
Secs. 303(a) and 304(c), Public Law 97-424, 96 Stat. 2141 (49 U.S.C.
1607); and 49 CFR 1.51.
Source: 58 FR 4888, Jan. 15, 1993, unless otherwise noted.
Sec. 630.1 Purpose.
The purpose of this part is to prescribe requirements and procedures
necessary for compliance with the Uniform System of Accounts and Records
and Reporting System mandated by section 15 of the Federal Transit Act,
as amended, 49 U.S.C. 1611, and to set forth the procedures for
addressing a reporting agency's failure to comply with these
requirements.
Sec. 630.2 Scope.
This part applies to all applicants and beneficiaries of Federal
financial assistance under section 9 of the Federal Transit Act, as
amended (49 U.S.C. 1607a).
Sec. 630.3 Definitions.
(a) Except as otherwise provided, terms defined in the Federal
Transit
[[Page 48]]
Act, as amended (49 U.S.C. 1601 et seq.), are used in this part as so
defined.
(b) Terms defined in the current editions of the Urban Mass
Transportation Industry Uniform System of Accounts and Records and the
annual Reporting Manual, are used in this part as so defined.
(c) For purposes of this part:
Administrator means the Federal Transit Administrator or the
Administrator's designee.
Applicant means an applicant for assistance under section 9 of the
Federal Transit Act, as amended.
Assistance means Federal financial assistance for the acquisition,
construction, or operation of public mass transportation services.
Beneficiary means any organization operating and delivering urban
transit services that directly receives benefits from assistance under
section 9 of the Federal Transit Act, as amended.
Chief Executive Officer (CEO) means the principal executive in
charge of and responsible for the reporting agency.
Current edition of the Urban Mass Transportation Industry Uniform
System of Accounts and Records and the Reporting Manual means the most
recently issued edition of the reference documents.
Days mean calendar days.
The Federal Transit Act means the Federal Transit Act, as amended
(49 U.S.C. 1601a et seq.)
Mass Transportation Agency or transit agency means an agency
authorized to transport people by bus, rail, or other conveyance, either
publicly or privately owned, and which provides to the public general or
special service (but not including school, charter, or sightseeing
service) on a regular and continuing, scheduled or unscheduled, basis.
Transit agencies are classified according to the mode of transit service
operated. A multi-mode transit agency operates two or more modes, which
are defined in the current editions of the Urban Mass Transportation
Industry Uniform System of Accounts and Records and the Reporting
Manual.
Reference Document(s) means the current editions of the Urban Mass
Transportation Industry Uniform System of Accounts and Records, and the
Reporting Manual. These documents are subject to periodic revision.
Beneficiaries and applicants are responsible for using the current
editions of the reference documents.
Reporting agency means the agency required to submit a report under
section 15.
Sec. 630.4 Requirements.
(a) Uniform system of accounts and records. Each applicant for and
direct beneficiary of Federal financial assistance under section 9 of
the Federal Transit Act must comply with the applicable requirements of
the section 15 Uniform System of Accounts and Records, as set forth in
the current edition of the ``Urban Mass Transportation Industry Uniform
System of Accounts and Records''; the ``Reporting Manual''; Circulars;
and other reference documentation.
(b) Reporting system. Each applicant for, and direct beneficiary of,
Federal financial assistance under section 9 of the Federal Transit Act
must comply with the applicable requirements of the section 15 Reporting
System, as set forth in the current edition of the ``Urban Mass
Transportation Industry Uniform System of Accounts and Records''; the
``Reporting Manual''; Circulars; and other reference documentation.
(c) Copies. Copies of these referenced documents are available from
the Federal Transit Administration, Office of Grants Management, Audit
Review and Analysis Division, P.O. Box 61126, Washington, DC 20039-1126.
These reference documents are subject to periodic revision. Revisions of
these documents will be mailed to all persons required to comply and a
notice of any significant changes in these reference documents will be
published in Federal Register.
Sec. 630.5 Failure to report data.
Failure to report data in accordance with this part will result in
the reporting agency being ineligible to receive any section 9 grants
directly or indirectly (e.g., a public agency receiving The FTA funds
through another public agency rather than directly from the FTA). This
ineligibility applies to all
[[Page 49]]
reporting agencies without regard to the size of the urbanized area
served by the reporting agency.
Sec. 630.6 Late and incomplete reports.
(a) Late reports. Each reporting agency shall ensure that its report
is received by the FTA on due dates prescribed in the annual Reporting
Manual. A reporting agency may request an extension of 30 days after the
due date. The FTA will treat a failure to submit the required report by
the due date as failure to report data under Sec. 630.05.
(b) Incomplete reports. The FTA will treat any report or submission
which does not contain all the necessary reporting forms, data, or
certifications for services directly operated by the reporting agency in
substantial conformance with the definitions, procedures, and format
requirements set out in the section 15 Uniform System of Accounts and
Records and Reporting System as failure to report data under Sec.
630.05. The FTA will treat the submission of a report with incomplete
data or missing forms for services provided under contract to the
reporting agency by private or public carriers as failure to report data
under Sec. 630.05 provided that the reporting agency has exhausted all
possibilities for obtaining this information.
Sec. 630.7 Failure to respond to questions.
The FTA will review each section 15 report to verify the
reasonableness of the data submitted. If any of the data do not appear
reasonable, the FTA will notify the reporting agency of this fact and
request written justification to document the accuracy of the questioned
data. Failure of a reporting agency to make a good faith written
response to this request will be treated under Sec. 630.5 as failure to
report data.
Sec. 630.8 Questionable data items.
The FTA may enter a zero or adjust any questionable data item(s) in
a reporting agency's section 15 report used in computing the section 9
apportionment. These adjustments may be made if any data appear
inaccurate or have not been collected and reported in accordance with
the FTA's definitions and/or confidence and precision levels, or if
there is lack of adequate documentation or a reliable recordkeeping
system.
Sec. 630.9 Notice of FTA action.
Before taking final action under Sec. 630.5, Sec. 630.6, Sec.
630.7 or Sec. 630.8, the FTA will transmit a written request to the
reporting agencies to provide the necessary information within a
specified reasonable period of time. The FTA will advise the reporting
agency of its final decision in this regard.
Sec. 630.10 Waiver of reporting requirements.
Waivers of one or more sections of the reporting requirements may be
granted at the discretion of the Administrator on a written showing that
the party seeking the waiver cannot furnish the required data without
unreasonable expense and inconvenience. Each waiver will be for a
specified period of time.
Sec. 630.11 Data adjustments.
Errors in the data used in making the apportionment may be
discovered after any particular year's apportionment is completed. If
so, the FTA shall make adjustments to correct these errors in a
subsequent year's apportionment to the extent feasible.
Sec. 630.12 Display of OMB control numbers.
All of the information collection requests in this part have been
approved by the Office of Management and Budget under control number
2132-0008.
Appendix A to Part 630--Overview and Explanation of the Urban Mass
Transportation Industry Uniform System of Accounts and Records and
Reporting System
A. Introduction
Section 15 of the Federal Transit Act, as amended, provides for
establishment of two information-gathering analytic systems: A Uniform
System of Accounts and Records, and a Reporting System for the
collection and dissemination of public mass transportation financial and
operating data by uniform categories. The purpose of these two Systems
is to provide information on which to base public transportation
planning and public sector investment decisions. The section 15 system
is administered by the Federal Transit Administration (FTA).
[[Page 50]]
The Uniform System of Accounts and Records consists of:
Various categories of accounts and records for
classifying financial and operating data;
Precise definitions as to what data elements are
to be included in these categories; and
Definitions of practices for systematic
colloection and recording of such information.
While a specific accounting system is recommended
for this recordkeeping, it is possible to make a translation from most
existing accounting systems to comply with the Section 15 Reporting
System, which consists of forms and procedures:
For transmitting data from transit agencies to
the FTA;
For editing and storing the data; and
For the FTA to report information to various
groups.
Under the terms of section 15 of the Federal Transit Act, as
amended, all applicants for, and beneficiaries of, Federal assistance
under section 9 of the Act (under the formula grant programs) must
comply with the Reporting System and the Uniform System of Accounts and
Records in order to be eligible for Federal grants. It should be noted
that separate and complete Section 15 reports must be submitted by or
for each purchased transportation service provider that operates 100 or
more revenue vehicles for the purchased service during the maximum
service period.
B. Purpose of This Appendix
This appendix presents a general introduction to the structure and
operation of the two Systems. It is not a detailed set of instructions
for completion of a Section 15 report or establishment of a System of
Accounts and Records. Persons in need of more information should refer
to the current editions of the Urban Mass Transportation Industry
Uniform System of Accounts and Records and the Reporting Manual,
available from: Federal Transit Administration, Audit Review and
Analysis Division, Office of Capital and Formula Assistance, P.O. Box
61126, Washington, DC 20039-1126.
The FTA periodically updates these reference documents or
supplements them to revise or clarify section 15 definitions, reporting
forms and instructions. Section 630.4 makes clear that reporting
agencies must use the most recent edition of reference documents and
reporting forms to comply with the section 15 requirements. The FTA
therefore encourages local officials to check with the FTA before
completing a Section 15 report to avoid unnecessary efforts and delays.
C. Special (Reduced) Reporting Requirements
Certain information collection and recording requirements were
tailored to accommodate the unique characteristics of certain
transportation modes. Reduced requirements were permitted during limited
time periods to ease transition to complete reporting for these modes.
Reduced reporting requirements for commuter rail systems and vanpool
services ended in the 1987 report year. In addition, the reduced
reporting requirements for private subscription and private noncontract
conventional bus service is eliminated for the 1992 report year.
D. A Single Required Level of Section 15 Reporting and Recordkeeping
The FTA has developed a single required reporting format for use by
all transit agencies. The single required level accommodates variations
in size, local laws, and modes of transport.
The Uniform Systems also contain a limited amount of additional more
detailed financial and operational data that can be submitted at the
reporting agency's option. Because the optional subcategories of data
can be aggregated to the required level, these subcategories define the
more aggregated data. The definitions for data reported at the required
level are consistent with, and summarized from, those for the more
detailed optional data.
E. The Uniform System of Accounts and Records
The Uniform System of Accounts and Records (USOA) consists of a
financial accounting and operational recordkeeping system designed for
mass transportation managers and planners. Its uniformity permits more
thorough and accurate comparisons and analyses of different transit
agencies' operating costs and efficiencies than if each had a unique
recordkeeping and accounting system. The System establishes various
categories of accounts and records for classifying mass transportation
operating and financial data, and includes precise definitions of
transportation terminology to ensure that all users share a common
understanding of how to use and interpret the collected data.
(1) Use of the Accounts and Records System
Beneficiaries of, and applicants for, Federal assistance are not
required to use the Uniform System of Accounts and Records in keeping
their own records. If an applicant or beneficiary chooses not to use the
System, however, it must nevertheless be able to translate its accounts
and records system to the accounts prescribed in the System. The
accounting system that the reporting agency uses must permit preparation
of financial and operating data that conform to the Uniform System
directly from its records at the
[[Page 51]]
end of the fiscal year, and must be consistent with the following:
(i) The data must have been developed using the accrual method of
accounting. Those transit systems that use cash-basis accounting, in
whole or in part, must make work sheet adjustments in their account
books to record the data on the accrual basis.
(ii) Reporting agencies must follow or be able to directly translate
their system to the accounting treatment specified in the publication
``Uniform System of Accounts and Records.''
(iii) The reporting agency's accounting categories (chart of
accounts) must be correctly related, using a clear audit trail, to the
accounting categories prescribed in the Uniform System of Accounts and
Records.
(2) General Structure of Uniform System of Accounts and Records
In the Section 15 Uniform System of Accounts and Records, operating
expenses incurred by the transit system are classified by transit mode.
The FTA developed expense classifications in two dimensions for
uniformity and to enhance the usefulness of the data collected under
section 15. The classifications are typical of those of most transit
accounting systems. The two dimensions are:
(i) The type of expenditure (expense object class); and
(ii) The function or activity performed.
Operating expenses can be identified either in function or object
class categories, or cross-classified, allowing identification using
both categories. The Uniform System also categorizes expenditures by
four basic functions submitted by all reporting agencies. A limited
number of additional details are optional. All reporting agencies are
required to use a single set of object class categories.
The Uniform System has a single set of revenue object classes to be
used by all reporting agencies, and provides a limited number of
additional details that are optional.
The Uniform System provides a classification for sources and uses of
capital to be submitted by all reporting agencies. These classifications
replace capital information previously required on the balance sheet and
capital subsidiary schedule.
The Uniform System of Accounts and Records also includes collecting
and recording of certain operating data elements.
Details and definitions of the expense object classes, functions,
revenue object classes, sources and uses of capital, and operating data
elements are contained in the current edition of the ``Reporting
Manual,'' which is updated annually, and the USOA reference documents.
F. The Reporting System
(1) The Section 15 Reporting System consists of forms and procedures
for transmitting data from transit agencies to the FTA. All
beneficiaries of Federal financial assistance must submit the required
forms and information in order to allow the FTA to: (1) Store and
generate information on the Nation's mass transportation systems; and
(2) calculate apportionment allocations for the section 9 formula grant
program (for urbanized areas of 200,000 or more inhabitants). Agencies
submitting Section 15 reports may only submit data for transit services
which they directly operate and purchase under contract from public
agencies and/or private carriers.
Separate and complete Section 15 reports must be submitted by or for
each purchased transportation service provider that operates 100 or more
revenue vehicles for the purchased service during the maximum service
period. The reporting requirements include the following major segments,
which are based on information assembled through the Uniform System of
Accounts and Records:
1. Capital report.
2. Revenue report.
3. Expense report.
4. Nonfinancial operating data reports.
5. Miscellaneous auxiliary questionnaires and subsidiary schedules.
6. Data declarations.
(2) The Section 15 Reporting System includes two data declarations.
(a) The Chief Executive Officer (CEO) Certification.
The CEO of each reporting agency is required to submit a
certification with each annual Section 15 report. The certification must
attest:
To the accuracy of all data contained in the
Section 15 report;
That all data submitted in the Section 15 report
are in accord with Section 15 definitions;
If applicable, that the reporting agency's
accounting system used to derive all data submitted in the Section 15
report is the section 15 Uniform System of Accounts and Records and that
a Section 15 report using this system was certified by an independent
auditor in a previous report year;
If applicable, the fact that the reporting
agency's internal accounting system is other than the Uniform System of
Accounts and Records, and that its: (i) accounting system uses the
accrual basis of accounting, (ii) accounting system is directly
translated, using a clear audit trail, to the accounting treatment and
categories specified by the section 15 Uniform System of Accounts and
Records, and (iii) accounting system and direct translation to the
Uniform System of Accounts and Records are the same as those certified
[[Page 52]]
by an independent auditor in a previous reporting year; and
That a 100% count of passenger mile data was
conducted or that the sampling method used to collect passenger mile
data for each mode/type of service meets the FTA requirements.
(b) Auditor Statement on Section 15 Financial Data Reporting Forms
and Section 9 Data.
Reporting agencies must submit with their Section 15 report a
statement signed by an independent public accountant or other
responsible independent entity such as a state audit agency. This
statement must express an opinion on whether the financial data
reporting forms in the Section 15 report present fairly, in all material
respects, the information required to be set forth therein in accordance
with the Uniform System of Accounts and Records. The statement shall
also indicate whether any of the reporting forms or data elements do not
conform to the section 15 requirements, and describe the discrepancies.
The statement must consider both required and optional data entries.
Each agency is required to file an Auditor Statement unless it
received a written waiver from the FTA. The criteria in either Condition
I or Condition II for granting a financial data waiver are:
Condition I. The reporting agency (1) has adopted the Industry
Uniform System of Accounts and Records (USOA) and (2) has previously
submitted a Section 15 report that was compiled using the USOA and was
reviewed by an independent auditor; or
Condition II. The reporting agency (1) uses an internal accounting
system other than the accounting system prescribed by the USOA, (2) uses
the accrual basis of accounting, (3) directly translates the system and
accounting categories, using a clear audit trail, to the accounting
treatment and categories specified by the USOA, and (4) has previously
submitted a Section 15 report that was compiled using the same internal
accounting system and translation to the USOA and was reviewed by an
independent auditor.
For agencies that have received a waiver, the CEO annual
Certification must verify that the financial data meet one of the above
two conditions.
Additionally, all reporting agencies that are in or serve urbanized
areas with populations of 200,000 or more and whose report covers 100 or
more vehicles in annual maximum service across all modes and types of
service must have an independent auditor review all section 15 data used
in the section 9 formula allocation. The statement should discuss, by
mode and type of service: directional route miles, vehicle revenue
miles, passenger miles, and operating cost, and include both directly
operated and purchased service. The independent, certified public
accountant shall perform the verification in accordance with the
``Statements on Standards for Attestation Engagements'' issued by the
American Institute of Certified Public Accountants. The specific
procedures to be reviewed are described in the most recent Section 15
Reporting Manual.
PART 633_PROJECT MANAGEMENT OVERSIGHT--Table of Contents
Subpart A_General Provisions
Sec.
633.1 Purpose.
633.3 Scope.
633.5 Definitions.
Subpart B_Project Management Oversight Services
633.11 Covered projects.
633.13 Initiation of PMO services.
633.15 Access to information.
633.17 PMO contractor eligibility.
633.19 Financing the PMO program.
Subpart C_Project Management Plans
633.21 Basic requirement.
633.23 FTA review of PMP.
633.25 Contents of a project management plan.
633.27 Implementation of a project management plan.
633.29 PMP waivers.
Authority: 49 U.S.C. 1601 et. seq., 1619.
Source: 54 FR 36711, Sept. 1, 1989, unless otherwise noted.
Subpart A_General Provisions
Sec. 633.1 Purpose.
This part implements section 324 of the Surface Transportation and
Uniform Relocation Assistance Act of 1987 (Pub. L. 100-17), which added
section 23 to the FT Act. The part provides for a two-part program for
major capital projects receiving assistance from the agency. First,
subpart B discusses project management oversight, designed primarily to
aid FTA in its role of ensuring successful implementation of federally-
funded projects. Second, subpart C discusses the project management plan
(PMP) required of all major capital projects. The PMP is designed to
enhance the recipient's planning and implementation efforts and to
assist FTA's grant application analysis efforts.
[[Page 53]]
Sec. 633.3 Scope.
This rule applies to a recipient of Federal financial assistance
undertaking a major capital project using funds made available under:
(a) Sections 3, 9, or 18 of the Federal Mass Transit Act of 1964, as
amended;
(b) 23 U.S.C. 103(e)(4); or
(c) Section 14(b) of the National Capital Transportation Amendments
of 1979 (93 Stat. 1320, Pub. L. 96-184).
Sec. 633.5 Definitions.
As used in this part:
Administrator means the Administrator of the Federal Transit
Administration or the Administrator's designee.
Days means calendar days.
Fixed guideway means any public transportation facility which
utilizes and occupies a separate right-of-way or rails. This includes,
but is not limited to, rapid rail, light rail, commuter rail, automated
guideway transit, people movers, and exclusive facilities for buses and
other high occupancy vehicles.
Full funding agreement means a written agreement between FTA and a
recipient that establishes a financial ceiling with respect to the
Government's participation in a project; sets forth the scope of a
project; and sets forth the mutual understanding, terms, and conditions
relating to the construction and management of a project.
Major capital project means a project that:
(1) Involves the construction of a new fixed guideway or extension
of an existing fixed guideway;
(2) Involves the rehabilitation or modernization of an existing
fixed guideway with a total project cost in excess of $100 million; or
(3) The Administrator determines is a major capital project because
the project management oversight program will benefit specifically the
agency or the recipient. Typically, this means a project that:
(i) Generally is expected to have a total project cost in excess of
$100 million or more to construct;
(ii) Is not exclusively for the routine acquisition, maintenance, or
rehabilitation of vehicles or other rolling stock;
(iii) Involves new technology;
(iv) Is of a unique nature for the recipient; or
(v) Involves a recipient whose past experience indicates to the
agency the appropriateness of the extension of this program.
Project management oversight means the monitoring of a major capital
project's progress to determine whether a project is on time, within
budget, in conformance with design criteria, constructed to approved
plans and specifications and is efficiently and effectively implemented.
Project management plan means a written document prepared by a
recipient that explicitly defines all tasks necessary to implement a
major capital project.
Recipient means a direct recipient of Federal financial assistance
from FTA.
FT Act means the Federal Mass Transit Act of 1964, as amended.
FTA means the Federal Transit Administration.
Subpart B_Project Management Oversight Services
Sec. 633.11 Covered projects.
The Administrator may contract for project management oversight
services when the following two conditions apply:
(a) The recipient is using funds made available under section 3, 9,
or 18 of the Federal Mass Transit Act of 1964, as amended; 23 U.S.C.
103(e)(4); or section 14(b) of the National Capital Transportation
Amendments of 1979; and
(b) The project is a ``major capital project''.
Sec. 633.13 Initiation of PMO services.
PMO services will be initiated as soon as it is practicable, once
the agency determines this part applies. In most cases, this means that
PMO will begin during the preliminary engineering phase of the project.
However, consistent with other provisions in this part, the
Administrator may determine that a project is a ``major capital
project'' at any point during its implementation. Should this occur, PMO
will begin as soon as practicable after this agency determination.
[[Page 54]]
Sec. 633.15 Access to information.
A recipient of FTA funds for a major capital project shall provide
the Administrator and the PMO contractor chosen under this part access
to its records and construction sites, as reasonably may be required.
Sec. 633.17 PMO contractor eligibility.
(a) Any person or entity may provide project management oversight
services in connection with a major capital project, with the following
exceptions:
(1) An entity may not provide PMO services for its own project; and
(2) An entity may not provide PMO services for a project if there
exists a conflict of interest.
(b) In choosing private sector persons or entities to provide
project management oversight services, FTA uses the procurement
requirements in the government-wide procurement regulations, found at 48
CFR CH I.
Sec. 633.19 Financing the PMO program.
(a) FTA is authorized to expend up to \1/2\ of 1 percent of the
funds made available each fiscal year under sections 3, 9, or 18 of the
FT Act, 23 U.S.C. 103(e)(4), or section 14(b) of the National Capital
Transportation Amendments of 1979 (93 Stat. 1320) to contract with any
person or entity to provide a project management oversight service in
connection with a major capital project as defined in this part.
(b) A contract entered into between FTA and a person or entity for
project management oversight services under this part will provide for
the payment by FTA of 100 percent of the cost of carrying out the
contract.
Subpart C_Project Management Plans
Sec. 633.21 Basic requirement.
(a) If a project meets the definition of major capital project, the
recipient shall submit a project management plan prepared in accordance
with Sec. 633.25 of this part, as a condition of Federal financial
assistance. As a general rule, the PMP must be submitted during the
grant review process and is part of FTA's grant application review. This
section applies if:
(1) The project fails under one of the automatic major capital
investment project categories (Sec. 633.5(1) or (2) of this part); or
(2) FTA makes a determination that a project is a major capital
project, consistent with the definition of major capital project in
Sec. 633.5. This determination normally will be made during the grant
review process. However, FTA may make such determination after grant
approval.
(b)(1) FTA will notify the recipient when it must submit the PMP.
Normally, FTA will notify the recipient sometime during the grant review
process. If FTA determines the project is major under its discretionary
authority after the grant has been approved, FTA will inform the
recipient of its determination as soon as possible.
(2) Once FTA has notified the recipient that it must submit a plan,
the recipient will have a minimum of 90 days to submit the plan.
Sec. 633.23 FTA review of PMP.
Within 60 days of receipt of a project management plan, the
Administrator will notify the recipient that:
(a) The plan is approved;
(b) The plan is disapproved, including the reasons for the
disapproval;
(c) The plan will require modification, as specified, before
approval; or
(d) The Administrator has not yet completed review of the plan, and
state when it will be reviewed.
Sec. 633.25 Contents of a project management plan.
At a minimum, a recipient's project management plan shall include--
(a) A description of adequate recipient staff organization, complete
with well-defined reporting relationships, statements of functional
responsibilities, job descriptions, and job qualifications;
(b) A budget covering the project management organization,
appropriate consultants, property acquisition, utility relocation,
systems demonstration staff, audits, and such miscellaneous costs as the
recipient may be prepared to justify;
(c) A construction schedule;
[[Page 55]]
(d) A document control procedure and recordkeeping system;
(e) A change order procedure which includes a documented, systematic
approach to the handling of construction change orders;
(f) A description of organizational structures, management skills,
and staffing levels required throughout the construction phase;
(g) Quality control and quality assurance programs which define
functions, procedures, and responsibilities for construction and for
system installation and integration of system components;
(h) Material testing policies and procedures;
(i) Plan for internal reporting requirements including cost and
schedule control procedures; and
(j) Criteria and procedures to be used for testing the operational
system or its major components;
Sec. 633.27 Implementation of a project management plan.
(a) Upon approval of a project management plan by the Administrator
the recipient shall begin implementing the plan.
(b) If a recipient must modify an approved project management plan,
the recipient shall submit the proposed changes to the Administrator
along with an explanation of the need for the changes.
(c) A recipient shall submit periodic updates of the project
management plan to the Administrator. Such updates shall include, but
not be limited to:
(1) Project budget;
(2) Project schedule;
(3) Financing, both capital and operating;
(4) Ridership estimates, including operating plan; and
(5) Where applicable, the status of local efforts to enhance
ridership when estimates are contingent, in part, upon the success of
such efforts.
(d) A recipient shall submit current data on a major capital
project's budget and schedule to the Administrator on a monthly basis.
Sec. 633.29 PMP waivers.
A waiver will be considered upon initiation by the grantee or by the
agency itself. The Administrator may, on a case-by-case basis, waive:
(a) Any of the PMP elements in Sec. 633.25 of this part if the
Administrator determines the element is not necessary for a particular
plan; or
(b) The requirement of having a new project management plan
submitted for a major capital project if a recipient seeks to manage the
major capital project under a previously-approved project management
plan.
PART 639_CAPITAL LEASES--Table of Contents
Subpart A_General
Sec.
639.1 General overview of this part.
639.3 Purpose of this part.
639.5 Scope of this part.
639.7 Definitions.
Subpart B_Requirements
639.11 Lease qualification requirements.
639.13 Eligible types of leases.
639.15 Eligible forms of grant.
639.17 Eligible lease costs.
639.19 Other Federal requirements.
Subpart C_Cost-Effectiveness
639.21 Determination of cost-effectiveness.
639.23 Calculation of purchase or construction cost.
639.25 Calculation of lease cost.
639.27 Minimum criteria.
Subpart D_Lease Management
639.31 Early lease termination or modification.
639.33 Management of leased assets.
Authority: 49 U.S.C. 5302; 49 CFR 1.51.
Source: 56 FR 51794, Oct. 15, 1991, unless otherwise noted.
Subpart A_General
Sec. 639.1 General overview of this part.
This part contains the requirements to qualify for capital
assistance when leasing facilities or equipment under the Federal
transit laws. This part is set out in four subparts, with subpart A
containing general information on scope and definitions. Subpart B
contains the principal requirements of this
[[Page 56]]
part, including eligibility requirements, the self-certification system
used, and identification of the various forms of leases and grants that
are eligible under the program. Subpart B also contains a section on
other Federal requirements that may apply. Subpart C includes the actual
calculations that each recipient should undertake before certifying that
a lease is cost-effective. Finally, subpart D contains requirements on
early lease termination and project management in general.
[63 FR 68366, Dec. 10, 1998]
Sec. 639.3 Purpose of this part.
This rule implements section 3003 of the Transportation Equity Act
for the 21st Century (Pub. L. 105-178). Section 3003 amended section
5302 of Chapter 53 of Title 49 of the United States Code to allow a
recipient to use capital funds to finance the leasing of facilities and
equipment on the condition that the leasing arrangements are more cost
effective than purchase or construction.
[63 FR 68367, Dec. 10, 1998]
Sec. 639.5 Scope of this part.
This part applies to all requests for capital assistance under
Chapter 53 of Title 49 of the United States Code where the proposed
method of obtaining a capital asset is by lease rather than purchase or
construction.
[63 FR 68367, Dec. 10, 1998]
Sec. 639.7 Definitions.
In this part:
Applicant is included in the term ``recipient''.
Capital asset means facilities or equipment with a useful life of at
least one year, which are eligible for capital assistance.
Capital assistance means Federal financial assistance for capital
projects under section 9 of the FT Act.
Capital lease means any transaction whereby the recipient acquires
the right to use a capital asset without obtaining full ownership
regardless of the tax status of the transaction.
Equipment means non-expendable personal property.
Facilities means real property, including land, improvements and
fixtures.
Interest rate means the most advantageous interest rate actually
available to the recipient in the market.
Present value means the value at the time of calculation of a future
payment, or series of future payments discounted by the time value of
money as represented by an interest rate or similar cost of funds.
Recipient means an entity that receives Federal financial assistance
from FTA, including an entity that receives Federal financial assistance
from FTA through a State or other public body. In this part, a recipient
includes an applicant for Federal financial assistance.
FT Act means the Federal Mass Transit Act of 1964, as amended, 49
U.S.C. 1601 et seq.
FTA means the Federal Transit Administration.
Subpart B_Requirements
Sec. 639.11 Lease qualification requirements.
(a) A lease may qualify for capital assistance if it meets the
following criteria:
(1) The capital asset to be acquired by lease is otherwise eligible
for capital assistance;
(2) There is or will be no existing Federal interest in the capital
asset as of the date the lease will take effect unless as determined
pursuant to Sec. 639.13(b); and
(3) Lease of the capital asset is more cost-effective than purchase
or construction of the asset, as determined under subpart C of this
part.
(b) Once a lease has been qualified for capital assistance, it need
not be re-qualified absent an affirmative act or omission by the
recipient that vitiates the cost-effectiveness determination.
Sec. 639.13 Eligible types of leases.
(a) General. Any leasing arrangement, the terms of which provide for
the recipient's use of a capital asset, potentially is eligible as a
capital project under Chapter 53 of Title 49 of the United States Code,
regardless of the classification of the leasing arrangement for tax
purposes.
[[Page 57]]
(b) Special circumstances. A recipient may request FTA to determine
the eligibility of a certain financial arrangement if the recipient
believes it might not meet the requirements of this part.
(c) Lump sum lease. A recipient that wishes to enter into a lease
which requires the draw down of a single lump sum payment at the
inception of the lease (or payments in advance of the incurrence of
costs) rather than periodic payments during the life of the lease must
notify FTA prior to execution of the lease concerning how it will ensure
satisfactory continuing control of the asset for the duration of the
lease. FTA has the right to disapprove any arrangements where it has not
been demonstrated that the recipient will have control over the asset.
FTA may require the recipient to submit its cost-effectiveness
comparison for review.
(d) Pre-existing lease. A lease entered into before grant approval,
or before November 14, 1991 may be eligible for capital assistance for
costs incurred after approval of such a lease by FTA under this part, if
(1) The lease is otherwise eligible under this part;
(2) The recipient can demonstrate that the lease, when entered into,
was more cost effective than purchase or construction; and
(3) The procurement of the asset by lease was in accordance with
Federal requirements that applied at the time the procurement tool
place.
[56 FR 51794, Oct. 15, 1991, as amended at 63 FR 68367, Dec. 10, 1998]
Sec. 639.15 Eligible forms of grant.
A recipient may choose to receive capital assistance for a capital
lease approved under this part--
(a) In a single grant under which lease payments may be drawn down
periodically for the life of the lease; or
(b) In increments that are obligated by FTA periodically (usually in
annual section 9 grants). In this case, a recipient--
(1) Must certify to FTA that it has the financial capacity to meet
its future obligations under the lease in the event Federal funds are
not available for capital assistance in subsequent years; and
(2) May incur costs under its lease before FTA's obligation of
future increments of funding for such a lease. These costs are
reimbursable in future grants, so long as the terms of the lease do not
substantially change.
Sec. 639.17 Eligible lease costs.
(a) All costs directly attributable to making a capital asset
available to the lessee are eligible for capital assistance, including,
but not limited to--
(1) Finance charges, including interest;
(2) Ancillary costs such as delivery and installation charges; and
(3) Maintenance costs.
(b) Any asset leased under this part must be eligible for capital
assistance under a traditional purchase or construction grant.
[61 FR 25090, May 17, 1996]
Sec. 639.19 Other Federal requirements.
(a) A recipient of capital assistance for a capital lease is subject
to the same statutory and administrative requirements as a recipient who
purchases or constructs a capital asset.
(b) A lessor of a capital lease is subject to the same statutory and
administrative requirements as a direct seller of the same capital asset
would be when the lessor--
(1) Purchases or constructs a capital asset in contemplation of
leasing it to a recipient; or
(2) Modifies an existing capital asset in contemplation of leasing
it to a recipient.
Subpart C_Cost-Effectiveness
Sec. 639.21 Determination of cost-effectiveness.
(a) To qualify a lease for capital assistance, a recipient must--
(1) Make a written comparison of the cost of leasing the asset with
the cost of purchasing or constructing it; and
(2) Certify to FTA before entering into the lease or before
receiving a capital grant for the asset, whichever is later, that
obtaining the asset by lease is more cost-effective than purchase or
construction of such asset.
[[Page 58]]
(b) For purposes of this part, obtaining the asset by lease is more
cost-effective than purchase or construction when the lease cost
calculated under Sec. 639.25 of this part is less than the purchase
cost calculated under Sec. 639.23 of this part.
(c) If a recipient is unable to perform the prescribed cost-
effectiveness comparison as described in this subpart, it may ask FTA to
approve an alternate form of cost-effectiveness evaluation.
Sec. 639.23 Calculation of purchase or construction cost.
(a) For purposes of this subpart, the purchase or construction cost
of a capital asset is--
(1) The estimated cost to purchase or construct the asset; plus
(2) Ancillary costs such as delivery and installation; plus
(3) The net present value of the estimated future cost to provide
any other service or benefit requested by the applicant in its proposal
to obtain the capital asset.
(b) The estimated cost to purchase or construct must be--
(1) Reasonable;
(2) Based on realistic current market conditions; and
(3) Based on the expected useful life of the asset in mass
transportation service, as indicated in paragraph (c) of this section.
(c) For purposes of this part, the expected useful life of a revenue
vehicle is the useful life which is established by FTA for recipients of
Federal assistance under FTA's Circulars for section 9 recipients. For
assets other than revenue vehicles, the applicant is responsible for
establishing a reasonable expected useful life. If the recipient does
not intend to use the capital asset it is proposing to obtain by lease
in mass transportation service for its entire expected useful life, when
calculating the purchase cost, the recipient must calculate the fair
market value of the asset as of the date the lease will terminate
pursuant to Guidelines found in section 108(b) of part II Standard Terms
and Conditions for valuation of property withdrawn from transit use
before the end of its useful life and subtract that amount from the
purchase price. The resulting amount is the purchase price for purposes
of this rule.
Sec. 639.25 Calculation of lease cost.
(a) For purposes of this part, the lease cost of a capital asset
is--
(1) The cost to lease the asset for the same use and same time
period specified in the recipient's proposal to obtain the asset by
purchase or construction; plus
(2) Ancillary costs such as delivery and installation; plus
(3) The net present value of the estimated future cost to provide
any other service or benefit requested by the applicant in its proposal
to obtain the capital asset.
(b) The estimated lease costs must be reasonable, based on realistic
market conditions applicable to the recipient and must be expressed in
present value terms.
Sec. 639.27 Minimum criteria.
In making the comparison between leasing and purchasing or
constructing an asset, recipients should ascribe a realistic dollar
value to any non-financial factors that are considered by using
performance-based specifications in the comparison. In addition to
factors unique to each recipient, the following factors are to be used
where possible and appropriate:
(a) Operation costs;
(b) Reliability of service;
(c) Maintenance costs;
(d) Difference in warranties;
(e) Passenger comfort;
(f) Insurance costs;
(g) Costs/savings related to timing of acquisition of asset.
(h) Value of asset at expiration of the lease.
Subpart D_Lease Management
Sec. 639.31 Early lease termination or modification.
(a) Except as provided in paragraph (c) of this section, if a
capital lease under this part is terminated or its terms substantially
modified before the end of the period used in the cost-effectiveness
evaluation, or if the recipient by an affirmative act or omission
vitiates the cost-effectiveness determination of the lease, future lease
[[Page 59]]
costs will no longer qualify as eligible capital expenses. In addition,
the recipient must reimburse the project--
(1) Any Federal funds paid for the portion of the lease term
eliminated by early termination; and
(2) The Federal share of the excess, if any, of the present value of
lease costs, which exceeds the purchase costs as calculated under
subpart C of this part for the period of the lease up to the point of
termination.
(b) Penalties resulting from early termination of a capital lease
under this part are not eligible for Federal financial assistance.
(c) Paragraph (a) of this section does not apply if a lessor
defaults on or otherwise does not meet its obligations under the capital
lease and the recipient takes appropriate action to ensure that the
procurement continues to be cost-effective. FTA shall be notified of any
such event.
Sec. 639.33 Management of leased assets.
Each recipient must maintain an inventory of capital assets acquired
by standard FTA project management guidelines.
PART 640_CREDIT ASSISTANCE FOR SURFACE TRANSPORTATION PROJECTS--Table of Contents
Authority: Secs. 1501 et seq., Pub. L. 105-178, 112 Stat. 107, 241,
as amended; 23 U.S.C. 181-189 and 315; 49 CFR 1.51.
Sec. 640.1 Cross-reference to credit assistance.
The regulations in 49 CFR part 80 shall be followed in complying
with the requirements of this part. Title 49, CFR, part 80 implements
the Transportation Infrastructure Finance and Innovation Act of 1998,
secs. 1501 et seq., Pub. L. 105-178, 112 Stat. 107, 241.
[64 FR 29753, June 2, 1999]
PART 655_PREVENTION OF ALCOHOL MISUSE AND PROHIBITED DRUG USE IN TRANSIT OPERATIONS--Table of Contents
Subpart A_General
Sec.
655.1 Purpose.
655.2 Overview.
655.3 Applicability.
655.4 Definitions.
655.5 Stand-down waivers for drug testing.
655.6 Preemption of state and local laws.
655.7 Starting date for testing programs.
Subpart B_Program Requirements
655.11 Requirement to establish an anti-drug use and alcohol misuse
program.
655.12 Required elements of an anti-drug use and alcohol misuse program.
655.13 [Reserved]
655.14 Education and training programs.
655.15 Policy statement contents.
655.16 Requirement to disseminate policy.
655.17 Notice requirement.
655.18-655.20 [Reserved]
Subpart C_Prohibited Drug Use
655.21 Drug testing.
655.22-655.30 [Reserved]
Subpart D_Prohibited Alcohol Use
655.31 Alcohol testing.
655.32 On duty use.
655.33 Pre-duty use.
655.34 Use following an accident.
655.35 Other alcohol-related conduct.
655.36-655.40 [Reserved]
Subpart E_Types of Testing
655.41 Pre-employment drug testing.
655.42 Pre-employment alcohol testing.
655.43 Reasonable suspicion testing.
655.44 Post-accident testing.
655.45 Random testing.
655.46 Return to duty following refusal to submit to a test, verified
positive drug test result and/or breath alcohol test result of
0.04 or greater.
655.47 Follow-up testing after returning to duty.
655.48 Retesting of covered employees with an alcohol concentration of
0.02 or greater but less than 0.04.
655.49 Refusal to submit to a drug or alcohol test.
655.50 [Reserved]
[[Page 60]]
Subpart F_Drug and Alcohol Testing Procedures
655.51 Compliance with testing procedures requirements.
655.52 Substance abuse professional (SAP).
655.53 Supervisor acting as collection site personnel.
655.54-655.60 [Reserved]
Subpart G_Consequences
655.61 Action when an employee has a verified positive drug test result
or has a confirmed alcohol test result of 0.04 or greater, or
refuses to submit to a test.
655.62 Referral, evaluation, and treatment.
655.63-655.70 [Reserved]
Subpart H_Administrative Requirements
655.71 Retention of records.
655.72 Reporting of results in a management information system.
655.73 Access to facilities and records.
655.74-655.80 [Reserved]
Subpart I_Certifying Compliance
655.81 Grantee oversight responsibility.
655.82 Compliance as a condition of financial assistance.
655.83 Requirement to certify compliance.
Authority: 49 U.S.C. 5331; 49 CFR 1.51.
Source: 66 FR 42002, Aug. 9, 2001, unless otherwise noted.
Subpart A_General
Sec. 655.1 Purpose.
The purpose of this part is to establish programs to be implemented
by employers that receive financial assistance from the Federal Transit
Administration (FTA) and by contractors of those employers, that are
designed to help prevent accidents, injuries, and fatalities resulting
from the misuse of alcohol and use of prohibited drugs by employees who
perform safety-sensitive functions.
Sec. 655.2 Overview.
(a) This part includes nine subparts. Subpart A of this part covers
the general requirements of FTA's drug and alcohol testing programs.
Subpart B of this part specifies the basic requirements of each
employer's alcohol misuse and prohibited drug use program, including the
elements required to be in each employer's testing program. Subpart C of
this part describes prohibited drug use. Subpart D of this part
describes prohibited alcohol use. Subpart E of this part describes the
types of alcohol and drug tests to be conducted. Subpart F of this part
addresses the testing procedural requirements mandated by the Omnibus
Transportation Employee Testing Act of 1991, and as required in 49 CFR
Part 40. Subpart G of this part lists the consequences for covered
employees who engage in alcohol misuse or prohibited drug use. Subpart H
of this part contains administrative matters, such as reports and
recordkeeping requirements. Subpart I of this part specifies how a
recipient certifies compliance with the rule.
(b) This part must be read in conjunction with 49 CFR Part 40,
Procedures for Transportation Workplace Drug and Alcohol Testing
Programs.
Sec. 655.3 Applicability.
(a) Except as specifically excluded in paragraph (b) of this
section, this part applies to:
(1) Each recipient and subrecipient receiving Federal assistance
under:
(i) 49 U.S.C. 5307, 5309, or 5311; or
(ii) 23 U.S.C. 103(e)(4); and
(2) Any contractor of a recipient or subrecipient of Federal
assistance under:
(i) 49 U.S.C. 5307, 5309, or 5311; or
(ii) 23 U.S.C. 103(e)(4).
(b) A recipient operating a railroad regulated by the Federal
Railroad Administration (FRA) shall follow 49 CFR Part 219 and Sec.
655.83 for its railroad operations, and shall follow this part for its
non-railroad operations, if any.
Sec. 655.4 Definitions.
For this part, the terms listed in this section have the following
definitions. The definitions of additional terms used in this part but
not listed in this section can be found in 49 CFR Part 40.
Accident means an occurrence associated with the operation of a
vehicle, if as a result:
(1) An individual dies; or
(2) An individual suffers bodily injury and immediately receives
medical treatment away from the scene of the accident; or
[[Page 61]]
(3) With respect to an occurrence in which the mass transit vehicle
involved is a bus, electric bus, van, or automobile, one or more
vehicles (including non-FTA funded vehicles) incurs disabling damage as
the result of the occurrence and such vehicle or vehicles are
transported away from the scene by a tow truck or other vehicle; or
(4) With respect to an occurrence in which the mass transit vehicle
involved is a rail car, trolley car, trolley bus, or vessel, the mass
transit vehicle is removed from operation.
Administrator means the Administrator of the Federal Transit
Administration or the Administrator's designee.
Anti-drug program means a program to detect and deter the use of
prohibited drugs as required by this part.
Certification means a recipient's written statement, authorized by
the organization's governing board or other authorizing official that
the recipient has complied with the provisions of this part. (See Sec.
655.82 and Sec. 655.83 for certification requirements.)
Contractor means a person or organization that provides a safety-
sensitive service for a recipient, subrecipient, employer, or operator
consistent with a specific understanding or arrangement. The
understanding can be a written contract or an informal arrangement that
reflects an ongoing relationship between the parties.
Covered employee means a person, including an applicant or
transferee, who performs or will perform a safety-sensitive function for
an entity subject to this part. A volunteer is a covered employee if:
(1) The volunteer is required to hold a commercial driver's license
to operate the vehicle; or
(2) The volunteer performs a safety-sensitive function for an entity
subject to this part and receives remuneration in excess of his or her
actual expenses incurred while engaged in the volunteer activity.
Disabling damage means damage that precludes departure of a motor
vehicle from the scene of the accident in its usual manner in daylight
after simple repairs.
(1) Inclusion. Damage to a motor vehicle, where the vehicle could
have been driven, but would have been further damaged if so driven.
(2) Exclusions. (i) Damage that can be remedied temporarily at the
scene of the accident without special tools or parts.
(ii) Tire disablement without other damage even if no spare tire is
available.
(iii) Headlamp or tail light damage.
(iv) Damage to turn signals, horn, or windshield wipers, which makes
the vehicle inoperable.
DOT or The Department means the United States Department of
Transportation.
DOT agency means an agency (or ``operating administration'') of the
United States Department of Transportation administering regulations
requiring drug and alcohol testing. See 14 CFR part 121, appendices I
and J; 33 CFR part 95; 46 CFR parts 4, 5, and 16; and 49 CFR parts 199,
219, 382, and 655.
Employer means a recipient or other entity that provides mass
transportation service or which performs a safety-sensitive function for
such recipient or other entity. This term includes subrecipients,
operators, and contractors.
FTA means the Federal Transit Administration, an agency of the U.S.
Department of Transportation.
Performing (a safety-sensitive function) means a covered employee is
considered to be performing a safety-sensitive function and includes any
period in which he or she is actually performing, ready to perform, or
immediately available to perform such functions.
Positive rate for random drug testing means the number of verified
positive results for random drug tests conducted under this part plus
the number of refusals of random drug tests required by this part,
divided by the total number of random drug tests results (i.e.,
positive, negative, and refusals) under this part.
Railroad means:
(1) All forms of non-highway ground transportation that run on rails
or electromagnetic guideways, including:
(i) Commuter or other short-haul rail passenger service in a
metropolitan or
[[Page 62]]
suburban area, as well as any commuter rail service that was operated by
the Consolidated Rail Corporation as of January 1, 1979; and
(ii) High speed ground transportation systems that connect
metropolitan areas, without regard to whether they use new technologies
not associated with traditional railroads.
(2) Such term does not include rapid transit operations within an
urban area that are not connected to the general railroad system of
transportation.
Recipient means an entity receiving Federal financial assistance
under 49 U.S.C. 5307, 5309, or 5311; or under 23 U.S.C. 103(e)(4).
Refuse to submit means any circumstance outlined in 49 CFR 40.191
and 40.261.
Safety-sensitive function means any of the following duties, when
performed by employees of recipients, subrecipients, operators, or
contractors:
(1) Operating a revenue service vehicle, including when not in
revenue service;
(2) Operating a nonrevenue service vehicle, when required to be
operated by a holder of a Commercial Driver's License;
(3) Controlling dispatch or movement of a revenue service vehicle;
(4) Maintaining (including repairs, overhaul and rebuilding) a
revenue service vehicle or equipment used in revenue service. This
section does not apply to the following: an employer who receives
funding under 49 U.S.C. 5307 or 5309, is in an area less than 200,000 in
population, and contracts out such services; or an employer who receives
funding under 49 U.S.C. 5311 and contracts out such services;
(5) Carrying a firearm for security purposes.
Vehicle means a bus, electric bus, van, automobile, rail car,
trolley car, trolley bus, or vessel. A mass transit vehicle is a vehicle
used for mass transportation or for ancillary services.
Violation rate for random alcohol testing means the number of 0.04
and above random alcohol confirmation test results conducted under this
part plus the number of refusals of random alcohol tests required by
this part, divided by the total number of alcohol random screening tests
(including refusals) conducted under this part.
[66 FR 42002, Aug. 9, 2001, as amended at 68 FR 75462, Dec. 31, 2003]
Sec. 655.5 Stand-down waivers for drug testing.
(a) An employer subject to this part may petition the FTA for a
waiver allowing the employer to stand down, per 49 CFR Part 40, an
employee following a report of a laboratory confirmed positive drug test
or refusal, pending the outcome of the verification process.
(b) Each petition for a waiver must be in writing and include facts
and justification to support the waiver. Each petition must satisfy the
requirements for obtaining a waiver, as provided in 49 CFR 40.21.
(c) Each petition for a waiver must be submitted to the Office of
Safety and Security, Federal Transit Administration, U.S. Department of
Transportation, 400 Seventh Street, SW. Washington, DC 20590.
(d) The Administrator may grant a waiver subject to 49 CFR 40.21(d).
Sec. 655.6 Preemption of state and local laws.
(a) Except as provided in paragraph (b) of this section, this part
preempts any state or local law, rule, regulation, or order to the
extent that:
(1) Compliance with both the state or local requirement and any
requirement in this part is not possible; or
(2) Compliance with the state or local requirement is an obstacle to
the accomplishment and execution of any requirement in this part.
(b) This part shall not be construed to preempt provisions of state
criminal laws that impose sanctions for reckless conduct attributed to
prohibited drug use or alcohol misuse leading to actual loss of life,
injury, or damage to property, whether the provisions apply specifically
to transportation employees or employers or to the general public.
Sec. 655.7 Starting date for testing programs.
An employer must have an anti-drug and alcohol misuse testing
program in place by the date the employer begins operations.
[[Page 63]]
Subpart B_Program Requirements
Sec. 655.11 Requirement to establish an anti-drug use and alcohol misuse program.
Each employer shall establish an anti-drug use and alcohol misuse
program consistent with the requirements of this part.
Sec. 655.12 Required elements of an anti-drug use and alcohol misuse program.
An anti-drug use and alcohol misuse program shall include the
following:
(a) A statement describing the employer's policy on prohibited drug
use and alcohol misuse in the workplace, including the consequences
associated with prohibited drug use and alcohol misuse. This policy
statement shall include all of the elements specified in Sec. 655.15.
Each employer shall disseminate the policy consistent with the
provisions of Sec. 655.16.
(b) An education and training program which meets the requirements
of Sec. 655.14.
(c) A testing program, as described in Subparts C and D of this
part, which meets the requirements of this part and 49 CFR Part 40.
(d) Procedures for referring a covered employee who has a verified
positive drug test result or an alcohol concentration of 0.04 or greater
to a Substance Abuse Professional, consistent with 49 CFR Part 40.
Sec. 655.13 [Reserved]
Sec. 655.14 Education and training programs.
Each employer shall establish an employee education and training
program for all covered employees, including:
(a) Education. The education component shall include display and
distribution to every covered employee of: informational material and a
community service hot-line telephone number for employee assistance, if
available.
(b) Training--(1) Covered employees. Covered employees must receive
at least 60 minutes of training on the effects and consequences of
prohibited drug use on personal health, safety, and the work
environment, and on the signs and symptoms that may indicate prohibited
drug use.
(2) Supervisors. Supervisors and/or other company officers
authorized by the employer to make reasonable suspicion determinations
shall receive at least 60 minutes of training on the physical,
behavioral, and performance indicators of probable drug use and at least
60 minutes of training on the physical, behavioral, speech, and
performance indicators of probable alcohol misuse.
Sec. 655.15 Policy statement contents.
The local governing board of the employer or operator shall adopt an
anti-drug and alcohol misuse policy statement. The statement must be
made available to each covered employee, and shall include the
following:
(a) The identity of the person, office, branch and/or position
designated by the employer to answer employee questions about the
employer's anti-drug use and alcohol misuse programs.
(b) The categories of employees who are subject to the provisions of
this part.
(c) Specific information concerning the behavior and conduct
prohibited by this part.
(d) The specific circumstances under which a covered employee will
be tested for prohibited drugs or alcohol misuse under this part.
(e) The procedures that will be used to test for the presence of
illegal drugs or alcohol misuse, protect the employee and the integrity
of the drug and alcohol testing process, safeguard the validity of the
test results, and ensure the test results are attributed to the correct
covered employee.
(f) The requirement that a covered employee submit to drug and
alcohol testing administered in accordance with this part.
(g) A description of the kind of behavior that constitutes a refusal
to take a drug or alcohol test, and a statement that such a refusal
constitutes a violation of the employer's policy.
(h) The consequences for a covered employee who has a verified
positive drug or a confirmed alcohol test result with an alcohol
concentration of 0.04 or greater, or who refuses to submit to a
[[Page 64]]
test under this part, including the mandatory requirements that the
covered employee be removed immediately from his or her safety-sensitive
function and be evaluated by a substance abuse professional, as required
by 49 CFR Part 40.
(i) The consequences, as set forth in Sec. 655.35 of subpart D, for
a covered employee who is found to have an alcohol concentration of 0.02
or greater but less than 0.04.
(j) The employer shall inform each covered employee if it implements
elements of an anti-drug use or alcohol misuse program that are not
required by this part. An employer may not impose requirements that are
inconsistent with, contrary to, or frustrate the provisions of this
part.
Sec. 655.16 Requirement to disseminate policy.
Each employer shall provide written notice to every covered employee
and to representatives of employee organizations of the employer's anti-
drug and alcohol misuse policies and procedures.
Sec. 655.17 Notice requirement.
Before performing a drug or alcohol test under this part, each
employer shall notify a covered employee that the test is required by
this part. No employer shall falsely represent that a test is
administered under this part.
Sec. Sec. 655.18-655.20 [Reserved]
Subpart C_Prohibited Drug Use
Sec. 655.21 Drug testing.
(a) An employer shall establish a program that provides testing for
prohibited drugs and drug metabolites in the following circumstances:
pre-employment, post-accident, reasonable suspicion, random, and return
to duty/follow-up.
(b) When administering a drug test, an employer shall ensure that
the following drugs are tested for:
(1) Marijuana;
(2) Cocaine;
(3) Opiates;
(4) Amphetamines; and
(5) Phencyclidine.
(c) Consumption of these products is prohibited at all times.
Sec. Sec. 655.22-655.30 [Reserved]
Subpart D_Prohibited Alcohol Use
Sec. 655.31 Alcohol testing.
(a) An employer shall establish a program that provides for testing
for alcohol in the following circumstances: post-accident, reasonable
suspicion, random, and return to duty/follow-up. An employer may also
conduct pre-employment alcohol testing.
(b) Each employer shall prohibit a covered employee, while having an
alcohol concentration of 0.04 or greater, from performing or continuing
to perform a safety-sensitive function.
Sec. 655.32 On duty use.
Each employer shall prohibit a covered employee from using alcohol
while performing safety-sensitive functions. No employer having actual
knowledge that a covered employee is using alcohol while performing
safety-sensitive functions shall permit the employee to perform or
continue to perform safety-sensitive functions.
Sec. 655.33 Pre-duty use.
(a) General. Each employer shall prohibit a covered employee from
using alcohol within 4 hours prior to performing safety-sensitive
functions. No employer having actual knowledge that a covered employee
has used alcohol within four hours of performing a safety-sensitive
function shall permit the employee to perform or continue to perform
safety-sensitive functions.
(b) On-call employees. An employer shall prohibit the consumption of
alcohol for the specified on-call hours of each covered employee who is
on-call. The procedure shall include:
(1) The opportunity for the covered employee to acknowledge the use
of alcohol at the time he or she is called to report to duty and the
inability to perform his or her safety-sensitive function.
(2) The requirement that the covered employee take an alcohol test,
if the covered employee has acknowledged the use of alcohol, but claims
ability to perform his or her safety-sensitive function.
[[Page 65]]
Sec. 655.34 Use following an accident.
Each employer shall prohibit alcohol use by any covered employee
required to take a post-accident alcohol test under Sec. 655.44 for
eight hours following the accident or until he or she undergoes a post-
accident alcohol test, whichever occurs first.
Sec. 655.35 Other alcohol-related conduct.
(a) No employer shall permit a covered employee tested under the
provisions of subpart E of this part who is found to have an alcohol
concentration of 0.02 or greater but less than 0.04 to perform or
continue to perform safety-sensitive functions, until:
(1) The employee's alcohol concentration measures less than 0.02; or
(2) The start of the employee's next regularly scheduled duty
period, but not less than eight hours following administration of the
test.
(b) Except as provided in paragraph (a) of this section, no employer
shall take any action under this part against an employee based solely
on test results showing an alcohol concentration less than 0.04. This
does not prohibit an employer with authority independent of this part
from taking any action otherwise consistent with law.
Sec. Sec. 655.36-655.40 [Reserved]
Subpart E_Types of Testing
Sec. 655.41 Pre-employment drug testing.
(a)(1) Before allowing a covered employee or applicant to perform a
safety-sensitive function for the first time, the employer must ensure
that the employee takes a pre-employment drug test administered under
this part with a verified negative result. An employer may not allow a
covered employee, including an applicant, to perform a safety-sensitive
function unless the employee takes a drug test administered under this
part with a verified negative result.
(2) When a covered employee or applicant has previously failed or
refused a pre-employment drug test administered under this part, the
employee must provide the employer proof of having successfully
completed a referral, evaluation and treatment plan as described in
Sec. 655.62.
(b) An employer may not transfer an employee from a nonsafety-
sensitive function to a safety-sensitive function until the employee
takes a pre-employment drug test administered under this part with a
verified negative result.
(c) If a pre-employment drug test is canceled, the employer shall
require the covered employee or applicant to take another pre-employment
drug test administered under this part with a verified negative result.
(d) When a covered employee or applicant has not performed a safety-
sensitive function for 90 consecutive calendar days regardless of the
reason, and the employee has not been in the employer's random selection
pool during that time, the employer shall ensure that the employee takes
a pre-employment drug test with a verified negative result.
Sec. 655.42 Pre-employment alcohol testing.
An employer may, but is not required to, conduct pre-employment
alcohol testing under this part. If an employer chooses to conduct pre-
employment alcohol testing, the employer must comply with the following
requirements:
(a) The employer must conduct a pre-employment alcohol test before
the first performance of safety-sensitive functions by every covered
employee (whether a new employee or someone who has transferred to a
position involving the performance of safety-sensitive functions).
(b) The employer must treat all covered employees performing safety-
sensitive functions the same for the purpose of pre-employment alcohol
testing (i.e., you must not test some covered employees and not others).
(c) The employer must conduct the pre-employment tests after making
a contingent offer of employment or transfer, subject to the employee
passing the pre-employment alcohol test.
(d) The employer must conduct all pre-employment alcohol tests using
the alcohol testing procedures set forth in 49 CFR Part 40.
(e) The employer must not allow a covered employee to begin
performing safety-sensitive functions unless the result of the
employee's test indicates
[[Page 66]]
an alcohol concentration of less than 0.02.
Sec. 655.43 Reasonable suspicion testing.
(a) An employer shall conduct a drug and/or alcohol test when the
employer has reasonable suspicion to believe that the covered employee
has used a prohibited drug and/or engaged in alcohol misuse.
(b) An employer's determination that reasonable suspicion exists
shall be based on specific, contemporaneous, articulable observations
concerning the appearance, behavior, speech, or body odors of the
covered employee. A supervisor(s), or other company official(s) who is
trained in detecting the signs and symptoms of drug use and alcohol
misuse must make the required observations.
(c) Alcohol testing is authorized under this section only if the
observations required by paragraph (b) of this section are made during,
just preceding, or just after the period of the workday that the covered
employee is required to be in compliance with this part. An employer may
direct a covered employee to undergo reasonable suspicion testing for
alcohol only while the employee is performing safety-sensitive
functions; just before the employee is to perform safety-sensitive
functions; or just after the employee has ceased performing such
functions.
(d) If an alcohol test required by this section is not administered
within two hours following the determination under paragraph (b) of this
section, the employer shall prepare and maintain on file a record
stating the reasons the alcohol test was not promptly administered. If
an alcohol test required by this section is not administered within
eight hours following the determination under paragraph (b) of this
section, the employer shall cease attempts to administer an alcohol test
and shall state in the record the reasons for not administering the
test.
Sec. 655.44 Post-accident testing.
(a) Accidents. (1) Fatal accidents. (i) As soon as practicable
following an accident involving the loss of human life, an employer
shall conduct drug and alcohol tests on each surviving covered employee
operating the mass transit vehicle at the time of the accident. Post-
accident drug and alcohol testing of the operator is not required under
this section if the covered employee is tested under the fatal accident
testing requirements of the Federal Motor Carrier Safety Administration
rule 49 CFR 389.303(a)(1) or (b)(1).
(ii) The employer shall also drug and alcohol test any other covered
employee whose performance could have contributed to the accident, as
determined by the employer using the best information available at the
time of the decision.
(2) Nonfatal accidents. (i) As soon as practicable following an
accident not involving the loss of human life in which a mass transit
vehicle is involved, the employer shall drug and alcohol test each
covered employee operating the mass transit vehicle at the time of the
accident unless the employer determines, using the best information
available at the time of the decision, that the covered employee's
performance can be completely discounted as a contributing factor to the
accident. The employer shall also drug and alcohol test any other
covered employee whose performance could have contributed to the
accident, as determined by the employer using the best information
available at the time of the decision.
(ii) If an alcohol test required by this section is not administered
within two hours following the accident, the employer shall prepare and
maintain on file a record stating the reasons the alcohol test was not
promptly administered. If an alcohol test required by this section is
not administered within eight hours following the accident, the employer
shall cease attempts to administer an alcohol test and maintain the
record. Records shall be submitted to FTA upon request of the
Administrator.
(b) An employer shall ensure that a covered employee required to be
drug tested under this section is tested as soon as practicable but
within 32 hours of the accident.
(c) A covered employee who is subject to post-accident testing who
fails to remain readily available for such testing, including notifying
the employer or the employer representative
[[Page 67]]
of his or her location if he or she leaves the scene of the accident
prior to submission to such test, may be deemed by the employer to have
refused to submit to testing.
(d) The decision not to administer a drug and/or alcohol test under
this section shall be based on the employer's determination, using the
best available information at the time of the determination that the
employee's performance could not have contributed to the accident. Such
a decision must be documented in detail, including the decision-making
process used to reach the decision not to test.
(e) Nothing in this section shall be construed to require the delay
of necessary medical attention for the injured following an accident or
to prohibit a covered employee from leaving the scene of an accident for
the period necessary to obtain assistance in responding to the accident
or to obtain necessary emergency medical care.
(f) The results of a blood, urine, or breath test for the use of
prohibited drugs or alcohol misuse, conducted by Federal, State, or
local officials having independent authority for the test, shall be
considered to meet the requirements of this section provided such test
conforms to the applicable Federal, State, or local testing
requirements, and that the test results are obtained by the employer.
Such test results may be used only when the employer is unable to
perform a post-accident test within the required period noted in
paragraphs (a) and (b) of this section.
Sec. 655.45 Random testing.
(a) Except as provided in paragraphs (b) through (d) of this
section, the minimum annual percentage rate for random drug testing
shall be 50 percent of covered employees; the random alcohol testing
rate shall be 10 percent. As provided in paragraph (b) of this section,
this rate is subject to annual review by the Administrator.
(b) The Administrator's decision to increase or decrease the minimum
annual percentage rate for random drug and alcohol testing is based,
respectively, on the reported positive drug and alcohol violation rates
for the entire industry. All information used for this determination is
drawn from the drug and alcohol Management Information System (MIS)
reports required by this part. In order to ensure reliability of the
data, the Administrator shall consider the quality and completeness of
the reported data, may obtain additional information or reports from
employers, and may make appropriate modifications in calculating the
industry's verified positive results and violation rates. Each year, the
Administrator will publish in the Federal Register the minimum annual
percentage rates for random drug and alcohol testing of covered
employees. The new minimum annual percentage rate for random drug and
alcohol testing will be applicable starting January 1 of the calendar
year following publication.
(c) Rates for drug testing. (1) When the minimum annual percentage
rate for random drug testing is 50 percent, the Administrator may lower
this rate to 25 percent of all covered employees if the Administrator
determines that the data received under the reporting requirements of
Sec. 655.72 for the two preceding consecutive calendar years indicate
that the reported positive rate is less than 1.0 percent.
(2) When the minimum annual percentage rate for random drug testing
is 25 percent, and the data received under the reporting requirements of
Sec. 655.72 for the calendar year indicate that the reported positive
rate is equal to or greater than 1.0 percent, the Administrator will
increase the minimum annual percentage rate for random drug or random
alcohol testing to 50 percent of all covered employees.
(d) Rates for alcohol testing. (1)(i) When the minimum annual
percentage rate for random alcohol testing is 25 percent or more, the
Administrator may lower this rate to 10 percent of all covered employees
if the Administrator determines that the data received under the
reporting requirements of Sec. 655.72 for two consecutive calendar
years indicate that the violation rate is less than 0.5 percent.
(ii) When the minimum annual percentage rate for random alcohol
testing is 50 percent, the Administrator may lower this rate to 25
percent of all
[[Page 68]]
covered employees if the Administrator determines that the data received
under the reporting requirements of Sec. 655.72 for two consecutive
calendar years indicate that the violation rate is less than 1.0 percent
but equal to or greater than 0.5 percent.
(2)(i) When the minimum annual percentage rate for random alcohol
testing is 10 percent, and the data received under the reporting
requirements of Sec. 655.72 for that calendar year indicate that the
violation rate is equal to or greater than 0.5 percent, but less than
1.0 percent, the Administrator will increase the minimum annual
percentage rate for random alcohol testing to 25 percent of all covered
employees.
(ii) When the minimum annual percentage rate for random alcohol
testing is 25 percent or less, and the data received under the reporting
requirements of Sec. 655.72 for that calendar year indicate that the
violation rate is equal to or greater than 1.0 percent, the
Administrator will increase the minimum annual percentage rate for
random alcohol testing to 50 percent of all covered employees.
(e) The selection of employees for random drug and alcohol testing
shall be made by a scientifically valid method, such as a random number
table or a computer-based random number generator that is matched with
employees' Social Security numbers, payroll identification numbers, or
other comparable identifying numbers. Under the selection process used,
each covered employee shall have an equal chance of being tested each
time selections are made.
(f) The employer shall randomly select a sufficient number of
covered employees for testing during each calendar year to equal an
annual rate not less than the minimum annual percentage rates for random
drug and alcohol testing determined by the Administrator. If the
employer conducts random drug and alcohol testing through a consortium,
the number of employees to be tested may be calculated for each
individual employer or may be based on the total number of covered
employees covered by the consortium who are subject to random drug and
alcohol testing at the same minimum annual percentage rate under this
part.
(g) Each employer shall ensure that random drug and alcohol tests
conducted under this part are unannounced and unpredictable, and that
the dates for administering random tests are spread reasonably
throughout the calendar year. Random testing must be conducted at all
times of day when safety-sensitive functions are performed.
(h) Each employer shall require that each covered employee who is
notified of selection for random drug or random alcohol testing proceed
to the test site immediately. If the employee is performing a safety-
sensitive function at the time of the notification, the employer shall
instead ensure that the employee ceases to perform the safety-sensitive
function and proceeds to the testing site immediately.
(i) A covered employee shall only be randomly tested for alcohol
misuse while the employee is performing safety-sensitive functions; just
before the employee is to perform safety-sensitive functions; or just
after the employee has ceased performing such functions. A covered
employee may be randomly tested for prohibited drug use anytime while on
duty.
(j) If a given covered employee is subject to random drug and
alcohol testing under the testing rules of more than one DOT agency for
the same employer, the employee shall be subject to random drug and
alcohol testing at the percentage rate established for the calendar year
by the DOT agency regulating more than 50 percent of the employee's
function.
(k) If an employer is required to conduct random drug and alcohol
testing under the drug and alcohol testing rules of more than one DOT
agency, the employer may--
(1) Establish separate pools for random selection, with each pool
containing the covered employees who are subject to testing at the same
required rate; or
(2) Randomly select such employees for testing at the highest
percentage rate established for the calendar year by any DOT agency to
which the employer is subject.
[[Page 69]]
Sec. 655.46 Return to duty following refusal to submit to a test, verified
positive drug test result and/or breath alcohol test result of 0.04 or
greater.
Where a covered employee refuses to submit to a test, has a verified
positive drug test result, and/or has a confirmed alcohol test result of
0.04 or greater, the employer, before returning the employee to duty to
perform a safety-sensitive function, shall follow the procedures
outlined in 49 CFR Part 40.
Sec. 655.47 Follow-up testing after returning to duty.
An employer shall conduct follow-up testing of each employee who
returns to duty, as specified in 49 CFR Part 40, subpart O.
Sec. 655.48 Retesting of covered employees with an alcohol concentration of 0.02 or greater but less than 0.04.
If an employer chooses to permit a covered employee to perform a
safety-sensitive function within 8 hours of an alcohol test indicating
an alcohol concentration of 0.02 or greater but less than 0.04, the
employer shall retest the covered employee to ensure compliance with the
provisions of Sec. 655.35. The covered employee may not perform safety-
sensitive functions unless the confirmation alcohol test result is less
than 0.02.
Sec. 655.49 Refusal to submit to a drug or alcohol test.
(a) Each employer shall require a covered employee to submit to a
post-accident drug and alcohol test required under Sec. 655.44, a
random drug and alcohol test required under Sec. 655.45, a reasonable
suspicion drug and alcohol test required under Sec. 655.43, or a
follow-up drug and alcohol test required under Sec. 655.47. No employer
shall permit an employee who refuses to submit to such a test to perform
or continue to perform safety-sensitive functions.
(b) When an employee refuses to submit to a drug or alcohol test,
the employer shall follow the procedures outlined in 49 CFR Part 40.
Sec. 655.50 [Reserved]
Subpart F_Drug and Alcohol Testing Procedures
Sec. 655.51 Compliance with testing procedures requirements.
The drug and alcohol testing procedures in 49 CFR Part 40 apply to
employers covered by this part, and must be read together with this
part, unless expressly provided otherwise in this part.
Sec. 655.52 Substance abuse professional (SAP).
The SAP must perform the functions in 49 CFR Part 40.
Sec. 655.53 Supervisor acting as collection site personnel.
An employer shall not permit an employee with direct or immediate
supervisory responsibility or authority over another employee to serve
as the urine collection person, breath alcohol technician, or saliva-
testing technician for a drug or alcohol test of the employee.
Sec. Sec. 655.54-655.60 [Reserved]
Subpart G_Consequences
Sec. 655.61 Action when an employee has a verified positive drug test result or has a confirmed alcohol test result of 0.04 or greater, or refuses to submit
to a test.
(a) (1) Immediately after receiving notice from a medical review
officer (MRO) or a consortium/third party administrator (C/TPA) that a
covered employee has a verified positive drug test result, the employer
shall require that the covered employee cease performing a safety-
sensitive function.
(2) Immediately after receiving notice from a Breath Alcohol
Technician (BAT) that a covered employee has a confirmed alcohol test
result of 0.04 or greater, the employer shall require that the covered
employee cease performing a safety-sensitive function.
(3) If an employee refuses to submit to a drug or alcohol test
required by this part, the employer shall require that the covered
employee cease performing a safety-sensitive function.
[[Page 70]]
(b) Before allowing the covered employee to resume performing a
safety-sensitive function, the employer shall ensure the employee meets
the requirements of 49 CFR Part 40 for returning to duty, including
taking a return to duty drug and/or alcohol test.
Sec. 655.62 Referral, evaluation, and treatment.
If a covered employee has a verified positive drug test result, or
has a confirmed alcohol test of 0.04 or greater, or refuses to submit to
a drug or alcohol test required by this part, the employer shall advise
the employee of the resources available for evaluating and resolving
problems associated with prohibited drug use and alcohol misuse,
including the names, addresses, and telephone numbers of substance abuse
professionals (SAPs) and counseling and treatment programs.
Sec. Sec. 655.63-655.70 [Reserved]
Subpart H_Administrative Requirements
Sec. 655. 71 Retention of records.
(a) General requirement. An employer shall maintain records of its
anti-drug and alcohol misuse program as provided in this section. The
records shall be maintained in a secure location with controlled access.
(b) Period of retention. In determining compliance with the
retention period requirement, each record shall be maintained for the
specified minimum period of time as measured from the date of the
creation of the record. Each employer shall maintain the records in
accordance with the following schedule:
(1) Five years. Records of covered employee verified positive drug
or alcohol test results, documentation of refusals to take required drug
or alcohol tests, and covered employee referrals to the substance abuse
professional, and copies of annual MIS reports submitted to FTA.
(2) Two years. Records related to the collection process and
employee training.
(3) One year. Records of negative drug or alcohol test results.
(c) Types of records. The following specific records must be
maintained:
(1) Records related to the collection process:
(i) Collection logbooks, if used.
(ii) Documents relating to the random selection process.
(iii) Documents generated in connection with decisions to administer
reasonable suspicion drug or alcohol tests.
(iv) Documents generated in connection with decisions on post-
accident drug and alcohol testing.
(v) MRO documents verifying existence of a medical explanation of
the inability of a covered employee to provide an adequate urine or
breathe sample.
(2) Records related to test results:
(i) The employer's copy of the custody and control form.
(ii) Documents related to the refusal of any covered employee to
submit to a test required by this part.
(iii) Documents presented by a covered employee to dispute the
result of a test administered under this part.
(3) Records related to referral and return to duty and follow-up
testing: Records concerning a covered employee's entry into and
completion of the treatment program recommended by the substance abuse
professional.
(4) Records related to employee training:
(i) Training materials on drug use awareness and alcohol misuse,
including a copy of the employer's policy on prohibited drug use and
alcohol misuse.
(ii) Names of covered employees attending training on prohibited
drug use and alcohol misuse and the dates and times of such training.
(iii) Documentation of training provided to supervisors for the
purpose of qualifying the supervisors to make a determination concerning
the need for drug and alcohol testing based on reasonable suspicion.
(iv) Certification that any training conducted under this part
complies with the requirements for such training.
(5) Copies of annual MIS reports submitted to FTA.
[[Page 71]]
Sec. 655.72 Reporting of results in a management information system.
(a) Each recipient shall annually prepare and maintain a summary of
the results of its anti-drug and alcohol misuse testing programs
performed under this part during the previous calendar year.
(b) When requested by FTA, each recipient shall submit to FTA's
Office of Safety and Security, or its designated agent, by March 15, a
report covering the previous calendar year (January 1 through December
31) summarizing the results of its anti-drug and alcohol misuse
programs.
(c) Each recipient shall be responsible for ensuring the accuracy
and timeliness of each report submitted by an employer, contractor,
consortium or joint enterprise or by a third party service provider
acting on the recipient's or employer's behalf.
(d) As an employer, you must use the Management Information System
(MIS) form and instructions as required by 49 CFR part 40, Sec. 40.25
and appendix H. You may also use the electronic version of the MIS form
provided by the DOT. The Administrator may designate means (e.g.,
electronic program transmitted via the Internet), other than hard-copy,
for MIS form submission. For information on where to submit MIS forms
and for the electronic version of the form, see: http://transit-
safety.volpe.dot.gov/DAMIS.
(e) To calculate the total number of covered employees eligible for
random testing throughout the year, as an employer, you must add the
total number of covered employees eligible for testing during each
random testing period for the year and divide that total by the number
of random testing periods. Covered employees, and only covered
employees, are to be in an employer's random testing pool, and all
covered employees must be in the random pool. If you are an employer
conducting random testing more often than once per month (e.g., you
select daily, weekly, bi-weekly), you do not need to compute this total
number of covered employees rate more than on a once per month basis. As
an employer, you may use a service agent (e.g., C/TPA) to perform random
selections for you; and your covered employees may be part of a larger
random testing pool of covered employees. However, you must ensure that
the service agent you use is testing at the appropriate percentage
established for your industry and that only covered employees are in the
random testing pool.
(f) If you have a covered employee who performs multi-DOT agency
functions (e.g., an employee drives a paratransit vehicle and performs
pipeline maintenance duties for you), count the employee only on the MIS
report for the DOT agency under which he or she is random tested.
Normally, this will be the DOT agency under which the employee performs
more than 50% of his or her duties. Employers may have to explain the
testing data for these employees in the event of a DOT agency inspection
or audit.
(g) A service agent (e.g., Consortia/Third Party Administrator as
defined in 49 CFR part 40) may prepare the MIS report on behalf of an
employer. However, a company official (e.g., Designated Employer
Representative as defined in 49 CFR part 40) must certify the accuracy
and completeness of the MIS report, no matter who prepares it.
[66 FR 42002, Aug. 9, 2001, as amended at 68 FR 75462, Dec. 31, 2003]
Sec. 655.73 Access to facilities and records.
(a) Except as required by law, or expressly authorized or required
in this section, no employer may release information pertaining to a
covered employee that is contained in records required to be maintained
by Sec. 655.71.
(b) A covered employee is entitled, upon written request, to obtain
copies of any records pertaining to the covered employee's use of
prohibited drugs or misuse of alcohol, including any records pertaining
to his or her drug or alcohol tests. The employer shall provide promptly
the records requested by the employee. Access to a covered employee's
records shall not be contingent upon the employer's receipt of payment
for the production of those records.
(c) An employer shall permit access to all facilities utilized and
records compiled in complying with the requirements of this part to the
Secretary of Transportation or any DOT
[[Page 72]]
agency with regulatory authority over the employer or any of its
employees or to a State oversight agency authorized to oversee rail
fixed guideway systems.
(d) An employer shall disclose data for its drug and alcohol testing
programs, and any other information pertaining to the employer's anti-
drug and alcohol misuse programs required to be maintained by this part,
to the Secretary of Transportation or any DOT agency with regulatory
authority over the employer or covered employee or to a State oversight
agency authorized to oversee rail fixed guideway systems, upon the
Secretary's request or the respective agency's request.
(e) When requested by the National Transportation Safety Board as
part of an accident investigation, employers shall disclose information
related to the employer's drug or alcohol testing related to the
accident under investigation.
(f) Records shall be made available to a subsequent employer upon
receipt of a written request from the covered employee. Subsequent
disclosure by the employer is permitted only as expressly authorized by
the terms of the covered employee's request.
(g) An employer may disclose information required to be maintained
under this part pertaining to a covered employee to the employee or the
decisionmaker in a lawsuit, grievance, or other proceeding initiated by
or on behalf of the individual, and arising from the results of a drug
or alcohol test under this part (including, but not limited to, a
worker's compensation, unemployment compensation, or other proceeding
relating to a benefit sought by the covered employee.)
(h) An employer shall release information regarding a covered
employee's record as directed by the specific, written consent of the
employee authorizing release of the information to an identified person.
(i) An employer may disclose drug and alcohol testing information
required to be maintained under this part, pertaining to a covered
employee, to the State oversight agency or grantee required to certify
to FTA compliance with the drug and alcohol testing procedures of 49 CFR
parts 40 and 655.
Sec. Sec. 655.74-655.80 [Reserved]
Subpart I_Certifying Compliance
Sec. 655.81 Grantee oversight responsibility.
A grantee shall ensure that the recipients of funds under 49 U.S.C.
5307, 5309, 5311 or 23 U.S.C. 103(e)(4) comply with this part.
Sec. 655.82 Compliance as a condition of financial assistance.
(a) General. A recipient may not be eligible for Federal financial
assistance under 49 U.S.C. 5307, 5309, or 5311 or under 23 U.S.C.
103(e)(4), if a recipient fails to establish and implement an anti-drug
and alcohol misuse program as required by this part. Failure to certify
compliance with these requirements, as specified in Sec. 655.83, may
result in the suspension of a grantee's eligibility for Federal funding.
(b) Criminal violation. A recipient is subject to criminal sanctions
and fines for false statements or misrepresentations under 18 U.S.C.
1001.
(c) State's role. Each State shall certify compliance on behalf of
its 49 U.S.C. 5307, 5309, 5311 or 23 U.S.C. 103(e)(4) subrecipients, as
applicable. In so certifying, the State shall ensure that each
subrecipient is complying with the requirements of this part. A section
5307, 5309, 5311 or 103(e)(4) subrecipient, through the administering
State, is subject to suspension of funding from the State if such
subrecipient is not in compliance with this part.
Sec. 655.83 Requirement to certify compliance.
(a) A recipient of FTA financial assistance shall annually certify
compliance, as set forth in Sec. 655.82, to the applicable FTA Regional
Office.
(b) A certification must be authorized by the organization's
governing board or other authorizing official, and must be signed by a
party specifically authorized to do so.
(c) A recipient will be ineligible for further FTA financial
assistance if the recipient fails to establish and implement an anti-
drug and alcohol misuse program in accordance with this part.
[[Page 73]]
PART 659_RAIL FIXED GUIDEWAY SYSTEMS; STATE SAFETY OVERSIGHT--Table of Contents
Subpart A_General Provisions
Sec.
659.1 Purpose.
659.3 Scope.
659.5 Definitions.
Subpart B_Role of the State
659.7 Withholding of funds for noncompliance.
659.9 Designation of oversight agency.
659.11 Confidentiality of investigation reports and security plans.
Subpart C_Role of the State Oversight Agency
659.13 Overview.
659.15 System safety program standard.
659.17 System safety program plan: general requirements.
659.19 System safety program plan: contents.
659.21 System security plan: general requirements.
659.23 System security plan: contents.
659.25 Annual review of system safety program plan and system security
plan.
659.27 Internal safety and security reviews.
659.29 Oversight agency safety and security reviews.
659.31 Hazard management process.
659.33 Accident notification.
659.35 Investigations.
659.37 Corrective action plans.
659.39 Oversight agency reporting to the Federal Transit Administration.
659.41 Conflict of interest.
659.43 Certification of compliance.
Authority: 49 U.S.C. 5330.
Source: 70 FR 22578, Apr. 29, 2005, unless otherwise noted.