[Title 49 CFR ]
[Code of Federal Regulations (annual edition) - October 1, 2008 Edition]
[From the U.S. Government Printing Office]
[[Page i]]
49
Parts 600 to 999
Revised as of October 1, 2008
Transportation
________________________
Containing a codification of documents of general
applicability and future effect
As of October 1, 2008
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) 117
Chapter VIII--National Transportation Safety Board 133
Finding Aids:
Table of CFR Titles and Chapters........................ 225
Alphabetical List of Agencies Appearing in the CFR...... 245
List of CFR Sections Affected........................... 255
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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.
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[[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
The contents of the Federal Register are required to be judicially
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evidence of the text of the original documents (44 U.S.C. 1510).
HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual
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To determine whether a Code volume has been amended since its
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Register page number of the latest amendment of any given rule.
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Each volume of the Code contains amendments published in the Federal
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The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires
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collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
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OBSOLETE PROVISIONS
Provisions that become obsolete before the revision date stated on
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(a) The incorporation will substantially reduce the volume of
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(b) The matter incorporated is in fact available to the extent
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(c) The incorporating document is drafted and submitted for
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Properly approved incorporations by reference in this volume are
listed in the Finding Aids at the end of this volume.
What if the material incorporated by reference cannot be found? If
you have any problem locating or obtaining a copy of material listed in
the Finding Aids of this volume as an approved incorporation by
reference, please contact the agency that issued the regulation
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the revision dates of the 50 CFR titles.
[[Page vii]]
REPUBLICATION OF MATERIAL
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Raymond A. Mosley,
Director,
Office of the Federal Register.
October 1, 2008.
[[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, 2008.
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, Susannah C. Hurley was Chief Editor. The Code of
Federal Regulations publication program is under the direction of
Michael L. White, assisted by Ann Worley.
[[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............................. 15
605 School bus operations....................... 43
609 Transportation for elderly and handicapped
persons................................. 51
611 Major capital investment projects........... 53
613 Planning assistance and standards........... 61
614 Transportation infrastructure management.... 61
622 Environmental impact and related procedures. 62
624 Clean Fuels Grant Program................... 62
630 National Transit Database................... 65
633 Project management oversight................ 67
639 Capital leases.............................. 70
640 Credit assistance for surface transportation
projects................................ 74
655 Prevention of alcohol misuse and prohibited
drug use in transit operations.......... 74
659 Rail fixed guideway systems; State safety
oversight............................... 87
661 Buy America requirements.................... 97
663 Pre-award and post-delivery audits of
rolling stock purchases................. 108
665 Bus testing................................. 111
[[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.
Subpart D_Emergency Procedures for Public Transportation Systems
601.40 Applicability.
601.41 Petitions for relief.
601.42 Emergency relief docket.
601.43 Opening the docket.
601.44 Posting to the docket.
601.45 Required information.
601.46 Processing of petitions.
601.47 Review procedures.
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.
[[Page 8]]
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.
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
[[Page 9]]
rights requirements, investigates complaints, conducts compliance
reviews, and provides technical assistance to recipients of FTA
assistance and members of the public.
(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).
[[Page 10]]
Sec. 601.4 Responsibilities of the Administrator.
The Administrator is responsible for the planning, direction and
control of 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.
[[Page 11]]
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 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
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of the Federal Transit Administration designates a member of his/her
staff to serve as legal officer at the hearing.
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
[[Page 13]]
under this section does not stay the effectiveness of the final rule.
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.
Subpart D_Emergency Procedures for Public Transportation Systems
Authority: 49 U.S.C. 5141 and 5334; 49 CFR 1.51.
Source: 72 FR 912, Jan. 9, 2007, unless otherwise noted.
Sec. 601.40 Applicability.
This part prescribes procedures that apply to FTA grantees and
subgrantees when the President has declared a national or regional
emergency, when a State Governor has declared a state of emergency, when
the Mayor of the District of Columbia has declared a state of emergency,
or in anticipation of such declarations.
Sec. 601.41 Petitions for relief.
In the case of a national or regional emergency or disaster, or in
anticipation of such a disaster, any FTA grantee or subgrantee may
petition the Administrator for temporary relief from
[[Page 14]]
the provisions of any policy statement, circular, guidance document or
rule.
Sec. 601.42 Emergency relief docket.
(a) By January 31st of each year, FTA shall establish an Emergency
Relief Docket in the publicly accessible DOT Docket Management System
(DMS) (http://dms.dot.gov).
(b) FTA shall publish a notice in the Federal Register identifying,
by docket number, the Emergency Relief Docket for that calendar year. A
notice shall also be published in the previous year's Emergency Relief
Docket identifying the new docket number.
(c) If the Administrator, or his/her designee, determines that an
emergency event has occurred, or in anticipation of such an event, FTA
shall place a message on its web page (http://www.fta.dot.gov)
indicating the Emergency Relief Docket has been opened and including the
docket number.
Sec. 601.43 Opening the docket.
(a) The Emergency Relief Docket shall be opened within two business
days of an emergency or disaster declaration in which it appears FTA
grantees or subgrantees are or will be impacted.
(b) In cases in which emergencies can be anticipated, such as
hurricanes, FTA shall open the docket and place the message on the FTA
web page in advance of the event.
(c) In the event a grantee or subgrantee believes the Emergency
Relief Docket should be opened and it has not been opened, that grantee
or subgrantee may submit a petition in duplicate to the Administrator,
via U.S. mail, to: Federal Transit Administration, 400 Seventh Street,
SW., Washington, DC 20590; via telephone, at: (202) 366-4043; or via
fax, at (202) 366-3472, requesting opening of the Docket for that
emergency and including the information in Sec. 601.45. The
Administrator in his/her sole discretion shall determine the need for
opening the Emergency Relief Docket.
Sec. 601.44 Posting to the docket.
(a) All petitions for relief must be posted in the docket in order
to receive consideration by FTA.
(b) The docket is publicly accessible and can be accessed 24 hours a
day, seven days a week, via the Internet at the docket facility's Web
site at http://dms.dot.gov. Petitions may also be submitted by U.S. mail
or by hand delivery to the DOT Docket Management Facility, Room PL-401
(Plaza Level), 400 7th Street, SW, Washington, DC 20590.
(c) In the event a grantee or subgrantee needs to request immediate
relief and does not have access to electronic means to request that
relief, the grantee or subgrantee may contact any FTA regional office or
FTA headquarters and request that FTA staff submit the petition on their
behalf.
(d) Any grantee or subgrantee submitting petitions for relief or
comments to the docket must include the agency name (Federal Transit
Administration) and that calendar year's docket number. Grantees and
subgrantees making submissions by mail or hand delivery should submit
two copies.
Sec. 601.45 Required information.
A petition for relief under this section shall:
(a) Identify the grantee or subgrantee and its geographic location;
(b) Specifically address how an FTA requirement in a policy
statement, circular, or agency guidance will limit a grantee's or
subgrantee's ability to respond to an emergency or disaster;
(c) Identify the policy statement, circular, guidance document and/
or rule from which the grantee or subgrantee seeks relief; and
(d) Specify if the petition for relief is one-time or ongoing, and
if ongoing identify the time period for which the relief is requested.
The time period may not exceed three months; however, additional time
may be requested through a second petition for relief.
Sec. 601.46 Processing of petitions.
(a) A petition for relief will be conditionally granted for a period
of three (3) business days from the date it is submitted to the
Emergency Relief Docket.
(b) FTA will review the petition after the expiration of the three
business
[[Page 15]]
days and review any comments submitted thereto. FTA may contact the
grantee or subgrantee that submitted the request for relief, or any
party that submits comments to the docket, to obtain more information
prior to making a decision.
(c) FTA shall then post a decision to the Emergency Relief Docket.
FTA's decision will be based on whether the petition meets the criteria
for use of these emergency procedures, the substance of the request, and
the comments submitted regarding the petition.
(d) If FTA fails to post a response to the request for relief to the
docket within three business days, the grantee or subgrantee may assume
its petition is granted until and unless FTA states otherwise.
Sec. 601.47 Review Procedures.
(a) FTA reserves the right to reopen any docket and reconsider any
decision made pursuant to these emergency procedures based upon its own
initiative, based upon information or comments received subsequent to
the three business day comment period, or at the request of a grantee or
subgrantee upon denial of a request for relief. FTA shall notify the
grantee or subgrantee if it plans to reconsider a decision.
(b) FTA decision letters, either granting or denying a petition,
shall be posted in the appropriate Emergency Relief Docket and shall
reference the document number of the petition to which it relates.
PART 604_CHARTER SERVICE--Table of Contents
Subpart A_General Provisions
Sec.
604.1 Purpose.
604.2 Applicability.
604.3 Definitions.
604.4 Charter service agreement.
Subpart B_Exceptions
604.5 Purpose.
604.6 Government officials on official government business.
604.7 Qualified human service organizations.
604.8 Leasing FTA funded equipment and drivers.
604.9 When no registered charter provider responds to notice from a
recipient.
604.10 Agreement with registered charter providers.
604.11 Petitions to the administrator.
604.12 Reporting requirements for all exceptions.
Subpart C_Procedures for Registration and Notification
604.13 Registration of private charter operators.
604.14 Recipient's notification to registered charter providers.
Subpart D_Registration of Qualified Human Service Organizations and
Duties for Recipients With Respect to Charter Registration Web Site
604.15 Registration of qualified human services organizations.
604.16 Duties for recipients with respect to Charter Registration Web
site.
Subpart E_Advisor Opinions and Cease and Desist Orders
604.17 Purpose.
604.18 Request for an advisory opinion.
604.19 Processing of advisory opinions.
604.20 Effect of an advisory opinion.
604.21 Special considerations for advisory opinions.
604.22 Request for a cease and desist order.
604.23 Effect of a cease and desist order.
604.24 Decisions by the Chief Counsel regarding cease and desist orders.
Subpart F_Complaints
604.25 Purpose.
604.26 Complaints and decisions regarding removal of private charter
operators or qualified human service organizations from
registration list.
604.27 Complaints, answers, replies, and other documents.
604.28 Dismissals.
604.29 Incomplete complaints.
604.30 Filing complaints.
604.31 Service.
Subpart G_Investigations
604.32 Investigation of complaint.
604.33 Agency initiation of investigation.
Subpart H_Decisions by FTA and Appointment of a Presiding Official (PO)
604.34 Chief Counsel decisions and appointment of a PO.
604.35 Separation of functions.
Subpart I_Hearings
604.36 Powers of a PO.
[[Page 16]]
604.37 Appearances, parties, and rights of parties.
604.38 Discovery.
604.39 Deposition.
604.40 Public disclosure of evidence.
604.41 Standard of proof.
604.42 Burden of proof.
604.43 Offer of proof.
604.44 Record.
604.45 Waiver of procedures.
604.46 Recommended decision by a PO.
604.47 Remedies.
Subpart J_Appeal to Administrator and Final Agency Orders
604.48 Appeal from Chief Counsel decision.
604.49 Administrator's discretionary review of the Chief Counsel's
decision.
Subpart K_Judicial Review
604.50 Judicial review of a final decision and order.
Appendix A to Part 604 --Listing of Human Service Federal Financial
Assistance Programs
Appendix B to Part 604--Reasons for Removal
Appendix C to Part 604--Frequently Asked Questions
Appendix D to Part 604--Table of Potential Remedies
Authority: 49 U.S.C. 5323(d): 3023(d), Pub. L. 109-59; 49 CFR 1.51.
Source: 73 FR 2345, Jan. 14, 2008, unless otherwise noted.
Subpart A_General provisions.
Sec. 604.1 Purpose.
(a) The purpose of this part is to implement 49 U.S.C. 5323(d),
which protects private charter operators from unauthorized competition
from recipients of Federal financial assistance under the Federal
Transit Laws.
(b) This subpart specifies which entities shall comply with the
charter service regulations; defines terms used in this part; explains
procedures for an exemption from this part; and sets out the contents of
a charter service agreement.
Sec. 604.2 Applicability.
(a) The requirements of this part shall apply to recipients of
Federal financial assistance under the Federal Transit Laws, except as
otherwise provided in paragraphs (b) through (g) of this section.
(b) The requirements of this part shall not apply to a recipient
transporting its employees, other transit system employees, transit
management officials, transit contractors and bidders, government
officials and their contractors and official guests, to or from transit
facilities or projects within its geographic service area or proposed
geographic service area for the purpose of conducting oversight
functions such as inspection, evaluation, or review.
(c) The requirements of this part shall not apply to private charter
operators that receive, directly or indirectly, Federal financial
assistance under section 3038 of the Transportation Equity Act for the
21st Century, as amended, or to the non-FTA funded activities of private
charter operators that receive, directly or indirectly, FTA financial
assistance under any of the following programs: 49 U.S.C. 5307, 49
U.S.C. 5309, 49 U.S.C. 5310, 49 U.S.C. 5311, 49 U.S.C. 5316, or 49
U.S.C. 5317.
(d) The requirements of this part shall not apply to a recipient
transporting its employees, other transit system employees, transit
management officials, transit contractors and bidders, government
officials and their contractors and official guests, for emergency
preparedness planning and operations.
(e) The requirements of this part shall not apply to a recipient
that uses Federal financial assistance from FTA, for program purposes
only, under 49 U.S.C. 5310, 49 U.S.C. 5311, 49 U.S.C. 5316, or 49 U.S.C.
5317.
(f) The requirements of this part shall not apply to a recipient,
for actions directly responding to an emergency declared by the
President, governor, or mayor or in an emergency requiring immediate
action prior to a formal declaration. If the emergency lasts more than
45 days, the recipient shall follow the procedures set out in subpart D
of 49 CFR 601.
(g) The requirements of this part shall not apply to a recipient in
a non-urbanized area transporting its employees, other transit system
employees, transit management officials, and transit contractors and
bidders to or from transit training outside its geographic service area.
[[Page 17]]
Sec. 604.3 Definitions.
All terms defined in 49 U.S.C. 5301 et seq. are used in their
statutory meaning in this part. Other terms used in this part are
defined as follows:
(a) ``Federal Transit Laws'' means 49 U.S.C. 5301 et seq., and
includes 23 U.S.C. 103(e)(4), 142(a), and 142(c), when used to provide
assistance to public transit agencies for purchasing buses and vans.
(b) ``Administrator'' means the Administrator of the Federal Transit
Administration or his or her designee.
(c) ``Charter service'' means, but does not include demand response
service to individuals:
(1) Transportation provided by a recipient at the request of a third
party for the exclusive use of a bus or van for a negotiated price. The
following features may be characteristic of charter service:
(i) A third party pays the transit provider a negotiated price for
the group;
(ii) Any fares charged to individual members of the group are
collected by a third party;
(iii) The service is not part of the transit provider's regularly
scheduled service, or is offered for a limited period of time; or
(iv) A third party determines the origin and destination of the trip
as well as scheduling; or
(2) Transportation provided by a recipient to the public for events
or functions that occur on an irregular basis or for a limited duration
and:
(i) A premium fare is charged that is greater than the usual or
customary fixed route fare; or
(ii) The service is paid for in whole or in part by a third party.
(d) ``Charter service hours'' means total hours operated by buses or
vans while in charter service including:
(1) Hours operated while carrying passengers for hire, plus
(2) Associated deadhead hours.
(e) ``Chief Counsel'' means the Chief Counsel of FTA and his or her
designated employees.
(f) ``Days'' means calendar days. The last day of a time period is
included in the computation of time unless the last day is a Saturday,
Sunday, or legal holiday, in which case, the time period runs until the
end of the next day that is not a Saturday, Sunday, or legal holiday.
(g) ``Demand response'' means any non-fixed route system of
transporting individuals that requires advanced scheduling by the
customer, including services provided by public entities, nonprofits,
and private providers.
(h) ``Exclusive'' means service that a reasonable person would
conclude is intended to exclude members of the public.
(i) ``FTA'' means the Federal Transit Administration.
(j) ``Geographic service area'' means the entire area in which a
recipient is authorized to provide public transportation service under
appropriate local, state, and Federal law.
(k) ``Government official'' means an individual elected or appointed
at the local, state, or Federal level.
(l) ``Interested party'' means an individual, partnership,
corporation, association, or other organization that has a financial
interest that is affected by the actions of a recipient providing
charter service under the Federal Transit Laws. This term includes
states, counties, cities, and their subdivisions, and tribal nations.
(m) ``Pattern of violations'' means more than one finding of
unauthorized charter service under this part by FTA beginning with the
most recent finding of unauthorized charter service and looking back
over a period not to exceed 72 months.
(n) ``Presiding Official'' means an official or agency
representative who conducts a hearing at the request of the Chief
Counsel and who has had no previous contact with the parties concerning
the issue in the proceeding.
(o) ``Program purposes'' means transportation that serves the needs
of either human service agencies or targeted populations (elderly,
individuals with disabilities, and or low income individuals); this does
not include exclusive service for other groups formed for purposes
unrelated to the special needs of the targeted populations identified
herein.
(p) ``Public transportation'' has the meaning set forth in 49 U.S.C.
5302(a)(10).
(q) ``Qualified human service organization'' means an organization
that
[[Page 18]]
serves persons who qualify for human service or transportation-related
programs or services due to disability, income, or advanced age. This
term is used consistent with the President's Executive Order on Human
Service Transportation Coordination (February 24, 2004).
(r) ``Recipient'' means an agency or entity that receives Federal
financial assistance, either directly or indirectly, including
subrecipients, under the Federal Transit Laws. This term does not
include third-party contractors who use non-FTA funded vehicles.
(s) ``Registered charter provider'' means a private charter operator
that wants to receive notice of charter service requests directed to
recipients and has registered on FTA's charter registration Web site.
(t) ``Registration list'' means the current list of registered
charter providers and qualified human service organizations maintained
on FTA's charter registration Web site.
(u) ``Special transportation'' means demand response or paratransit
service that is regular and continuous and is a type of ``public
transportation.''
(v) ``Violation'' means a finding by FTA of a failure to comply with
one of the requirements of this Part.
Sec. 604.4 Charter service agreement.
(a) A recipient seeking Federal assistance under the Federal Transit
Laws to acquire or operate any public transportation equipment or
facilities shall enter into a ``Charter Service Agreement'' as set out
in paragraph (b) of this section.
(b) A recipient shall enter into a Charter Service Agreement if it
receives Federal funds for equipment or facilities under the Federal
Transit Laws. The terms of the Charter Service Agreement are as follows:
``The recipient agrees that it, and each of its subrecipients, and third
party contractors at any level who use FTA-funded vehicles, may provide
charter service using equipment or facilities acquired with Federal
assistance authorized under the Federal Transit Laws only in compliance
with the regulations set out in 49 CFR 604, the terms and conditions of
which are incorporated herein by reference.''
(c) The Charter Service Agreement is contained in the Certifications
and Assurances published annually by FTA for applicants for Federal
financial assistance. Once a recipient receives Federal funds, the
Certifications and Assurances become part of its Grant Agreement or
Cooperative Agreement for Federal financial assistance.
Subpart B_Exceptions
Sec. 604.5 Purpose.
The purpose of this subpart is to identify the limited exceptions
under which recipients may provide community-based charter services.
Sec. 604.6 Government officials on official government business.
(a) A recipient may provide charter service to government officials
(Federal, State, and local) for official government business, which can
include non-transit related purposes, if the recipient:
(1) Provides the service in its geographic service area;
(2) Does not generate revenue from the charter service, except as
required by law; and
(3) After providing such service, records the following:
(i) The government organization's name, address, phone number, and
e-mail address;
(ii) The date and time of service;
(iii) The number of passengers (specifically noting the number of
government officials on the trip);
(iv) The origin, destination, and trip length (miles and hours);
(v) The fee collected, if any; and
(vi) The vehicle number for the vehicle used to provide the service.
(b) A recipient that provides charter service under this section
shall be limited annually to 80 charter service hours for providing
trips to government officials for official government business.
(c) A recipient may petition the Administrator for additional
charter service hours only if the petition contains the following
information:
(1) Date and description of the official government event and the
number of charter service hours requested;
[[Page 19]]
(2) Explanation of why registered charter providers in the
geographic service area cannot perform the service (e.g., equipment,
time constraints, or other extenuating circumstances); and
(3) Evidence that the recipient has sent the request for additional
hours to registered charter providers in its geographic service area.
(d) FTA shall post the request for additional charter service hours
under this exception in the Government Officials Exception docket,
docket number FTA-2007-0020 at http://www.regulations.gov. Interested
parties may review the contents of this docket and bring questions or
concerns to the attention of the Ombudsman for Charter Services. The
written decision of the Administrator regarding the request for
additional charter service hours shall be posted in the Government
Officials Exception docket and sent to the recipient.
Sec. 604.7 Qualified human service organizations.
(a) A recipient may provide charter service to a qualified human
service organization (QHSO) for the purpose of serving persons:
(1) With mobility limitations related to advanced age;
(2) With disabilities; or
(3) With low income.
(b) If an organization serving persons described in paragraph (a) of
this section receives funding, directly or indirectly, from the programs
listed in Appendix A of this part, the QHSO shall not be required to
register on the FTA charter registration Web site.
(c) If a QHSO serving persons described in paragraph (a) of this
section does not receive funding from any of the programs listed in
Appendix A of this part, the QHSO shall register on the FTA charter
registration Web site in accordance with Sec. 604.15.
(d) A recipient providing charter service under this exception,
whether or not the QHSO receives funding from Appendix A programs, and
after providing such charter service, shall record:
(1) The QHSO's name, address, phone number, and e-mail address;
(2) The date and time of service;
(3) The number of passengers;
(4) The origin, destination, and trip length (miles and hours);
(5) The fee collected, if any; and
(6) The vehicle number for the vehicle used to provide the service.
Sec. 604.8 Leasing FTA funded equipment and drivers.
(a) A recipient may lease its FTA-funded equipment and drivers to
registered charter providers for charter service only if the following
conditions exist:
(1) The private charter operator is registered on the FTA charter
registration Web site;
(2) The registered charter provider owns and operates buses or vans
in a charter service business;
(3) The registered charter provider received a request for charter
service that exceeds its available capacity either of the number of
vehicles operated by the registered charter provider or the number of
accessible vehicles operated by the registered charter provider; and
(4) The registered charter provider has exhausted all of the
available vehicles of all registered charter providers in the
recipient's geographic service area.
(b) A recipient leasing vehicles and drivers to a registered charter
provider under this provision shall record:
(1) The registered charter provider's name, address, telephone
number, and e-mail address;
(2) The number of vehicles leased, types of vehicles leased, and
vehicle identification numbers; and
(3) The documentation presented by the registered charter provider
in support of paragraphs (a)(1) through (4) of this section.
(c) In accordance with Sec. 604.26, if a registered charter
provider seeking to lease vehicles has filed a complaint requesting that
another registered charter provider be removed from the FTA charter
registration Web site, then the registered charter provider seeking to
lease vehicles is not required to exhaust the vehicles from that
registered charter provider while the complaint is pending before
leasing vehicles from a recipient.
[[Page 20]]
Sec. 604.9 When no registered charter provider responds to notice from a
recipient.
(a) A recipient may provide charter service, on its own initiative
or at the request of a third party, if no registered charter provider
responds to the notice issued in Sec. 604.14:
(1) Within 72 hours for charter service requested to be provided in
less than 30 days; or
(2) Within 14 calendar days for charter service requested to be
provided in 30 days or more.
(b) A recipient shall not provide charter service under this section
if a registered charter provider indicates an interest in providing the
charter service set out in the notice issued pursuant to Sec. 604.14
and the registered charter provider has informed the recipient of its
interest in providing the service.
(c) After providing the service, a recipient shall record:
(1) The group's name, address, phone number, and e-mail address;
(2) The date and time of service;
(3) The number of passengers;
(4) The origin, destination, and trip length (miles and hours);
(5) The fee collected, if any; and
(6) The vehicle number for the vehicle used to provide the service.
Sec. 604.10 Agreement with registered charter providers.
(a) A recipient may provide charter service directly to a customer
consistent with an agreement entered into with all registered charter
providers in the recipient's geographic service area.
(b) If a new charter provider registers in the geographic service
area subsequent to the initial agreement, the recipient may continue to
provide charter service under the previous agreement with the other
charter providers up to 90 days without an agreement with the newly
registered charter provider.
(c) Any of the parties to an agreement may cancel the agreement at
any time after providing the recipient a 90-day notice.
Sec. 604.11 Petitions to the Administrator.
(a) A recipient may petition the Administrator for an exception to
the charter service regulations to provide charter service directly to a
customer for:
(1) Events of regional or national significance;
(2) Hardship (only for non-urbanized areas under 50,000 in
population or small urbanized areas under 200,000 in population); or
(3) Unique and time sensitive events (e.g., funerals of local,
regional, or national significance) that are in the public's interest.
(b) The petition to the Administrator shall include the following
information:
(1) The date and description of the event;
(2) The type of service requested and the type of equipment;
(3) The anticipated number of charter service hours needed for the
event;
(4) The anticipated number of vehicles and duration of the event;
and
(i) For an event of regional or national significance, the petition
shall include a description of how registered charter providers were
consulted, how registered charter providers will be utilized in
providing the charter service, a certification that the recipient has
exhausted all of the registered charter providers in its geographic
service area, and submit the petition at least 90 days before the first
day of the event described in paragraph (b)(1) of this section;
(ii) For a hardship request, a petition is only available if the
registered charter provider has deadhead time that exceeds total trip
time from initial pick-up to final drop-off, including wait time. The
petition shall describe how the registered charter provider's minimum
duration would create a hardship on the group requesting the charter
service; or
(iii) For unique and time sensitive events, the petition shall
describe why the event is unique or time sensitive and how providing the
charter service would be in the public's interest.
(c) Upon receipt of a petition that meets the requirements set forth
in paragraph (b) of this section, the Administrator shall review the
materials and issue a written decision denying or granting the request
in whole or in part. In making this decision, the Administrator may seek
such additional
[[Page 21]]
information as the Administrator deems necessary. The Administrator's
decision shall be filed in the Petitions to the Administrator docket,
number FTA-2007-0022 at http://www.regulations.gov and sent to the
recipient.
(d) Any exception granted by the Administrator under this section
shall be effective only for the event identified in paragraph (b)(1) of
this section.
(e) A recipient shall send its petition to the Administrator by
facsimile to (202) 366-3809 or by e-mail to
[email protected].
(f) A recipient shall retain a copy of the Administrator's approval
for a period of at least three years and shall include it in the
recipient's quarterly report posted on the charter registration Web
site.
Sec. 604.12 Reporting requirements for all exceptions.
(a) A recipient that provides charter service in accordance with one
or more of the exceptions contained in this subpart shall maintain the
required notice and records in an electronic format for a period of at
least three years from the date of the service or lease. A recipient may
maintain the required records in other formats in addition to the
electronic format.
(b) In addition to the requirements identified in paragraph (a) of
this section, the records required under this subpart shall include a
clear statement identifying which exception the recipient relied upon
when it provided the charter service.
(c) Beginning on July 30, 2008, a recipient providing charter
service under these exceptions shall post the records required under
this subpart on the FTA charter registration Web site 30 days after the
end of each calendar quarter (i.e., January 30th, April 30th, July 30th,
and October 30th). A single document or charter log may include all
charter service trips provided during the quarter.
(d) A recipient may exclude specific origin and destination
information for safety and security reasons. If a recipient excludes
such information, the record of the service shall describe the reason
why such information was excluded and provide generalized information
instead of providing specific origin and destination information.
Subpart C_Procedures for Registration and Notification
Sec. 604.13 Registration of private charter operators.
(a) Private charter operators shall provide the following
information at http://www.fta.dot.gov/laws/leg--reg--179.html to be
considered a registered charter provider:
(1) Company name, address, phone number, e-mail address, and
facsimile number;
(2) Federal and, if available, state motor carrier identifying
number;
(3) The geographic service areas of public transit agencies, as
identified by the transit agency's zip code, in which the private
charter operator intends to provide charter service;
(4) The number of buses or vans the private charter operator owns;
(5) A certification that the private charter operator has valid
insurance; and
(6) Whether willing to provide free or reduced rate charter services
to registered qualified human service organizations.
(b) A private charter operator that provides valid information in
this subpart is a ``registered charter provider'' for purposes of this
part and shall have standing to file a complaint consistent with subpart
F.
(c) A recipient, a registered charter provider, or their duly
authorized representative, may challenge a registered charter provider's
registration and request removal of the private charter operator from
FTA's charter registration Web site by filing a complaint consistent
with subpart F.
(d) FTA may refuse to post a private charter operator's information
if the private charter operator fails to provide all of the required
information as indicated on the FTA charter registration Web site.
(e) A registered charter provider shall provide current and accurate
information on FTA's charter registration Web site, and shall update
that information no less frequently than every two years.
[[Page 22]]
Sec. 604.14 Recipient's notification to registered charter providers.
(a) Upon receiving a request for charter service, a recipient may:
(1) Decline to provide the service, with or without referring the
requestor to FTA's charter registration Web site (http://
www.fta.dot.gov/laws/leg--reg--179.html);
(2) Provide the service under an exception provided in subpart B of
this part; or
(3) Provide notice to registered charter providers as provided in
this section and provide the service pursuant to Sec. 604.9.
(b) If a recipient is interested in providing charter service under
the exception contained in Sec. 604.9, then upon receipt of a request
for charter service, the recipient shall provide e-mail notice to
registered charter providers in the recipient's geographic service area
in the following manner:
(1) E-mail notice of the request shall be sent by the close of
business on the day the recipient receives the request unless the
recipient received the request after 2 p.m., in which case the recipient
shall send the notice by the close of business the next business day;
(2) E-mail notice sent to the list of registered charter providers
shall include:
(i) Customer name, address, phone number, and e-mail address (if
available);
(ii) Requested date of service;
(iii) Approximate number of passengers;
(iv) Whether the type of equipment requested is (are) bus(es) or
van(s); and
(v) Trip itinerary and approximate duration; and
(3) If the recipient intends to provide service that meets the
definition of charter service under Sec. 604.3(c)(2), the e-mail notice
must include the fare the recipient intends to charge for the service.
(c) A recipient shall retain an electronic copy of the e-mail notice
and the list of registered charter providers that were sent e-mail
notice of the requested charter service for a period of at least three
years from the date the e-mail notice was sent.
(d) If a recipient receives an ``undeliverable'' notice in response
to its e-mail notice, the recipient shall send the notice via facsimile.
The recipient shall maintain the record of the undeliverable e-mail
notice and the facsimile sent confirmation for a period of three years.
Subpart D_Registration of Qualified Human Service Organizations and
Duties for Recipients With Respect to Charter Registration Web site
Sec. 604.15 Registration of qualified human service organizations.
(a) Qualified human service organizations (QHSO) that seek free or
reduced rate services from recipients, and do not receive funds from
Federal programs listed in Appendix A, but serve individuals described
in Sec. 604.7 (i.e., individuals with low income, advanced age, or with
disabilities), shall register on FTA's charter registration Web site by
submitting the following information:
(1) Name of organization, address, phone number, e-mail address, and
facsimile number;
(2) The geographic service area of the recipient in which the
qualified human service organization resides;
(3) Basic financial information regarding the qualified human
service organization and whether the qualified human service
organization is exempt from taxation under sections 501(c) (1), (3),
(4), or (19) of the Internal Revenue Code, and whether it is a unit of
Federal, State or local government;
(4) Whether the qualified human service organization receives funds
directly or indirectly from a State or local program, and if so, which
program(s); and
(5) A narrative statement describing the types of charter service
trips the qualified human service organization may request from a
recipient and how that service is consistent with the mission of the
qualified human service organization.
(b) A qualified human service organization is eligible to receive
charter services from a recipient if it:
(1) Registers on the FTA Web site in accordance with paragraph (a)
of this section at least 60 days before the date of the requested
charter service; and
[[Page 23]]
(2) Verifies FTA's receipt of its registration by viewing its
information on the FTA charter registration Web site (http://
www.fta.dot.gov/laws/leg--reg--179.html).
(c) A registered charter provider may challenge a QHSO's status to
receive charter services from a recipient by requesting removal of the
QHSO from FTA's charter registration Web site by filing a complaint
consistent with subpart F.
(d) A QHSO shall provide current and accurate information on FTA's
charter registration Web site, and shall update that information no less
frequently than every two years.
Sec. 604.16 Duties for recipients with respect to charter registration Web
site.
Each recipient shall ensure that its affected employees and
contractors have the necessary competency to effectively use the FTA
charter registration Web site.
Subpart E_Advisory Opinions and Cease and Desist Orders
Sec. 604.17 Purpose.
The purpose of this subpart is to set out the requirements for
requesting an advisory opinion from the Chief Counsel's Office. An
advisory opinion may also request that the Chief Counsel issue a cease
and desist order, which would be an order to refrain from doing an act
which, if done, would be a violation of this part.
Sec. 604.18 Request for an advisory opinion.
(a) An interested party may request an advisory opinion from the
Chief Counsel on a matter regarding specific factual events only.
(b) A request for an advisory opinion shall be submitted in the
following form:
[Date]
Chief Counsel, Federal Transit Administration, 1200 New Jersey Ave. SE.,
Room E55-302, Washington, DC 20590
Re: Request for Advisory Opinion
The undersigned submits this request for an advisory opinion from the
FTA Chief Counsel with respect to [the general nature of the matter
involved].
A. A full statement of all facts and legal points relevant to the
request
B. An affirmation that the undersigned swears, to the best of his/her
knowledge and belief, this request includes all data, information, and
views relevant to the matter, whether favorable or unfavorable to the
position of the undersigned, which is the subject of the request.
C. The following certification: ``I hereby certify that I have this day
served the foregoing [name of document] on the following interested
party(ies) at the following addresses and e-mail or facsimile numbers
(if also served by e-mail or facsimile) by [specify method of service]:
[list persons, addresses, and e-mail or facsimile numbers]''
Dated this -------- day of ---- , 20----.
[Signature]
[Printed name]
[Title of person making request]
[Mailing address]
[Telephone number]
[e-mail address]
(c) The Chief Counsel may request additional information, as
necessary, from the party submitting the request for an advisory
opinion.
(d) A request for an advisory opinion may be denied if:
(1) The request contains incomplete information on which to base an
informed advisory opinion;
(2) The Chief Counsel concludes that an advisory opinion cannot
reasonably be given on the matter involved;
(3) The matter is adequately covered by a prior advisory opinion or
a regulation;
(4) The Chief Counsel otherwise concludes that an advisory opinion
would not be in the public interest.
Sec. 604.19 Processing of advisory opinions.
(a) A request for an advisory opinion shall be sent to the Chief
Counsel at [email protected], and filed electronically in
the Charter Service Advisory Opinion/Cease and Desist Order docket
number FTA-2007-0023 at http://www.regulations.gov or sent to the
dockets office located at 1200 New Jersey Ave., SE., West Building
Ground Floor, Room W12-140, Washington, DC 20590, for submission to that
docket.
(b) The Chief Counsel shall make every effort to respond to a
request for an advisory opinion within ten days of receipt of a request
that complies with
[[Page 24]]
Sec. 604.18(b). The Chief Counsel shall send his or her decision to the
interested party, the docket, and the recipient, if appropriate.
Sec. 604.20 Effect of an advisory opinion.
(a) An advisory opinion represents the formal position of FTA on a
matter, and except as provided in Sec. 604.25 of this subpart,
obligates the agency to follow it until it is amended or revoked.
(b) An advisory opinion may be used in administrative or court
proceedings to illustrate acceptable and unacceptable procedures or
standards, but not as a legal requirement and is limited to the factual
circumstances described in the request for an advisory opinion. The
Chief Counsel's advisory opinion shall not be binding upon a Presiding
Official conducting a proceeding under subpart I of this part.
(c) A statement made or advice provided by an FTA employee
constitutes an advisory opinion only if it is issued in writing under
this section. A statement or advice given by an FTA employee orally, or
given in writing, but not under this section, is an informal
communication that represents the best judgment of that employee at the
time but does not constitute an advisory opinion, does not necessarily
represent the formal position of FTA, and does not bind or otherwise
obligate or commit the agency to the views expressed.
Sec. 604.21 Special considerations for advisory opinions.
Based on new facts involving significant financial considerations,
the Chief Counsel may take appropriate enforcement action contrary to an
advisory opinion before amending or revoking the opinion. This action
shall be taken only with the approval of the Administrator.
Sec. 604.22 Request for a cease and desist order.
(a) An interested party may also request a cease and desist order as
part of its request for an advisory opinion. A request for a cease and
desist order shall contain the following information in addition to the
information required for an advisory opinion:
(1) A description of the need for the cease and desist order, a
detailed description of the lost business opportunity the interested
party is likely to suffer if the recipient performs the charter service
in question, and how the public interest will be served by avoiding or
ameliorating the lost business opportunity. A registered charter
provider must distinguish its loss from that of other registered charter
providers in the geographic service area.
(2) A detailed description of the efforts made to notify the
recipient of the potential violation of the charter service regulations.
Include names, titles, phone numbers or e-mail addresses of persons
contacted, date and times contact was made, and the response received,
if any.
(b) A request for a cease and desist order may be denied if:
(1) The request contains incomplete information on which to base an
informed a cease and desist order;
(2) The Chief Counsel concludes that a cease and desist order cannot
reasonably be given on the matter involved;
(3) The matter is adequately covered by a prior a cease and desist
order; or
(4) The Chief Counsel otherwise concludes that a cease and desist
order would not be in the public interest.
(c) A recipient who is the subject of a request for a cease and
desist order shall have three business days to respond to the request.
The response shall include a point-by-point rebuttal to the information
included in the request for a cease and desist order.
(d) The time period for a response by the recipient begins once a
registered charter provider files a request in the Advisory Opinion/
Cease and Desist Order docket (FTA-2007-0023 at http://
www.regulations.gov) or with the FTA Chief Counsel's Office, whichever
date is sooner.
Sec. 604.23 Effect of a cease and desist order.
(a) Issuance of a cease and desist order against a recipient shall
be considered as an aggravating factor in determining the remedy to
impose against the recipient in future findings of noncompliance with
this part, if the recipient provides the service described
[[Page 25]]
in the cease and desist order issued by the Chief Counsel.
(b) In determining whether to grant the request for a cease and
desist order, the Chief Counsel shall consider the specific facts shown
in the signed, sworn request for a cease and desist order, applicable
statutes and regulations, and any other information that is relevant to
the request.
Sec. 604.24 Decisions by the Chief Counsel regarding cease and desist orders.
(a) The Chief Counsel may grant a request for a cease and desist
order if the interested party demonstrates, by a preponderance of the
evidence, that the planned provision of charter service by a recipient
would violate this part.
(b) In determining whether to grant the request for a cease and
desist order, the Chief Counsel shall consider the specific facts shown
in the signed, sworn request for a cease and desist order, applicable
statutes, regulations, agreements, and any other information that is
relevant to the request.
Subpart F_Complaints
Sec. 604.25 Purpose.
This subpart describes the requirements for filing a complaint
challenging the registration of a private charter operator or qualified
human service organization on the FTA charter registration Web site and
filing a complaint regarding the provision of charter service by a
recipient. Note: To save time and expense for all concerned, FTA expects
all parties to attempt to resolve matters informally before beginning
the official complaint process.
Sec. 604.26 Complaints and decisions regarding removal of private charter
operators or qualified human service organizations from registration list.
(a) A recipient, a registered charter provider, or its duly
authorized representative, may challenge the listing of a registered
charter provider or qualified human service organization on FTA's
charter registration Web site by filing a complaint that meets the
following:
(1) States the name and address of each entity who is the subject of
the complaint;
(2) Provides a concise but complete statement of the facts relied
upon to substantiate the reason why the private charter operator or
qualified human service organization should not be listed on the FTA
charter registration Web site;
(3) Files electronically by submitting it to the Charter Service
Removal Complaint docket number FTA-2007-0024 at http://
www.regulations.gov;
(4) Serves by e-mail or facsimile if no e-mail address is available,
or by overnight mail service with receipt confirmation, and attaches
documents offered in support of the complaint upon all entities named in
the complaint;
(5) Files within 90 days of discovering facts that merit removal of
the registered charter provider or qualified human service organization
from the FTA Charter Registration Web site; and
(6) Contains the following certification:
I hereby certify that I have this day served the foregoing [name of
document] on the following persons at the following addresses and e-mail
or facsimile numbers (if also served by e-mail or facsimile) by [specify
method of service]:
[list persons, addresses, and e-mail or facsimile numbers]
Dated this -------- day of --------, 20----.
[signature], for [party].
(b) The registered charter provider or qualified human service
organization shall have 15 days to answer the complaint and shall file
such answer, and all supporting documentation, in the Charter Service
Removal Complaint docket number FTA-2007-0024 at http://
www.regulations.gov and e-mail such answer to
[email protected].
(c) A recipient, qualified human service organization, or a
registered charter provider, or its duly authorized representative,
shall not file a reply to the answer.
(d) FTA shall determine whether to remove the registered charter
provider or qualified human service organization from the FTA charter
registration Web site based on a preponderance of
[[Page 26]]
the evidence of one or more of the following:
(1) Bad faith;
(2) Fraud;
(3) Lapse of insurance;
(4) Lapse of other documentation; or
(5) The filing of more than one complaint, which on its face, does
not state a claim that warrants an investigation or further action by
FTA.
(e) FTA's determination whether or not to remove a registered
charter provider or qualified human service organization from the
registration list shall be sent to the parties within 30 days of the
date of the response required in paragraph (b) of this section and shall
state:
(1) Reasons for allowing the continued listing or removal of the
registered charter provider or qualified human service organization from
the registration list;
(2) If removal is ordered, the length of time (not to exceed three
years) the private charter operator or qualified human service
organization shall be barred from the registration list; and
(3) The date by which the private charter operator or qualified
human service organization may re-apply for registration on the FTA
charter registration Web site.
Sec. 604.27 Complaints, answers, replies, and other documents.
(a) A registered charter provider, or its duly authorized
representative (``complainant''), affected by an alleged noncompliance
of this part may file a complaint with the Office of the Chief Counsel.
(b) Complaints filed under this subpart shall:
(1) Be titled ``Notice of Charter Service Complaint'';
(2) State the name and address of each recipient that is the subject
of the complaint and, with respect to each recipient, the specific
provisions of this part that the complainant believes were violated;
(2) Be served in accordance with Sec. 604.31, along with all
documents then available in the exercise of reasonable diligence,
offered in support of the complaint, upon all recipients named in the
complaint as being responsible for the alleged action(s) or omission(s)
upon which the complaint is based;
(3) Provide a concise but complete statement of the facts relied
upon to substantiate each allegation (complainant must show by a
preponderance of the evidence that the recipient provided charter
service and that such service did not fall within one of the exemptions
or exceptions set out in this part);
(4) Describe how the complainant was directly and substantially
affected by the things done or omitted by the recipients;
(5) Identify each registered charter provider associated with the
complaint; and
(6) Be filed within 90 days after the alleged event giving rise to
the complaint occurred.
(c) Unless the complaint is dismissed pursuant to Sec. 604.28 or
Sec. 604.29, FTA shall notify the complainant, respondent, and state
recipient, if applicable, within 30 days after the date FTA receives the
complaint that the complaint has been docketed. Respondent shall have 30
days from the date of service of the FTA notification to file an answer.
(d) The complainant may file a reply within 20 days of the date of
service of the respondent's answer.
(e) The respondent may file a rebuttal within 10 days of the date of
service of the reply.
(f) The answer, reply, and rebuttal shall, like the complaint, be
accompanied by the supporting documentation upon which the submitter
relies.
(g) The answer shall deny or admit the allegations made in the
complaint or state that the entity filing the document is without
sufficient knowledge or information to admit or deny an allegation, and
shall assert any affirmative defense.
(h) The answer, reply, and rebuttal shall each contain a concise but
complete statement of the facts relied upon to substantiate the answers,
admissions, denials, or averments made.
(i) The respondent's answer may include a motion to dismiss the
complaint, or any portion thereof, with a supporting memorandum of
points and authorities.
[[Page 27]]
(j) The complainant may withdraw a complaint at any time after
filing by serving a ``Notification of Withdrawal'' on the Chief Counsel
and the respondent.
Sec. 604.28 Dismissals.
(a) Within 20 days after the receipt of a complaint described in
Sec. 604.27, the Office of the Chief Counsel shall provide reasons for
dismissing a complaint, or any claim in the complaint, with prejudice,
under this section if:
(1) It appears on its face to be outside the jurisdiction of FTA
under the Federal Transit Laws;
(2) On its face it does not state a claim that warrants an
investigation or further action by FTA; or
(3) The complainant lacks standing to file a complaint under
subparts B, C, or D of this part.
(b) [Reserved]
Sec. 604.29 Incomplete complaints.
If a complaint is not dismissed under Sec. 604.28, but is deficient
as to one or more of the requirements set forth in Sec. 604.27, the
Office of the Chief Counsel may dismiss the complaint within 20 days
after receiving it. Dismissal shall be without prejudice and the
complainant may re-file after amendment to correct the deficiency. The
Chief Counsel's dismissal shall include the reasons for the dismissal
without prejudice.
Sec. 604.30 Filing complaints.
(a) Filing address. Unless provided otherwise, the complainant shall
file the complaint with the Office of the Chief Counsel, 1200 New Jersey
Ave., SE., Room E55-302, Washington, DC 20590 and file it electronically
in the Charter Service Complaint docket number FTA-2007-0025 at http://
www.regulations.gov or mail it to the docket by sending the complaint to
1200 New Jersey Ave., SE., West Building Ground Floor, Room W12-140,
Washington, DC 20590.
(b) Date and method of filing. Filing of any document shall be by
personal delivery, U.S. mail, or overnight delivery with receipt
confirmation. Unless the date is shown to be inaccurate, documents to be
filed with FTA shall be deemed filed, on the earliest of:
(1) The date of personal delivery;
(2) The mailing date shown on the certificate of service;
(3) The date shown on the postmark if there is no certificate of
service; or
(4) The mailing date shown by other evidence if there is no
certificate of service and no postmark.
(c) E-mail or fax. A document sent by facsimile or e-mail shall not
constitute service as described in Sec. 604.31.
(d) Number of copies. Unless otherwise specified, an executed
original shall be filed with FTA.
(e) Form. Documents filed with FTA shall be typewritten or legibly
printed. In the case of docketed proceedings, the document shall include
a title and the docket number, as established by the Chief Counsel or
Presiding Official, of the proceeding on the front page.
(f) Signing of documents and other papers. The original of every
document filed shall be signed by the person filing it or the person's
duly authorized representative. Subject to the enforcement provisions
contained in this subpart, the signature shall serve as a certification
that the signer has read the document and, based on reasonable inquiry,
to the best of the signer's knowledge, information, and belief, the
document is:
(1) Consistent with this part;
(2) Warranted by existing law or that a good faith argument exists
for extension, modification, or reversal of existing law; and
(3) Not interposed for any improper purpose, such as to harass or to
cause unnecessary delay or needless increase in the cost of the
administrative process.
Sec. 604.31 Service.
(a) Designation of person to receive service. The initial document
filed by the complainant shall state on the first page of the document
for all parties to be served:
(1) The title of the document;
(2) The name, post office address, telephone number; and
(3) The facsimile number, if any, and e-mail address(es), if any.
If any of the above items change during the proceeding, the person
shall promptly file notice of the change with
[[Page 28]]
FTA and the Presiding Official, if appropriate, and shall serve the
notice on all other parties to the proceeding.
(b) Docket numbers. Each submission identified as a complaint under
this part by the submitting party shall be filed in the Charter Service
Complaint docket FTA-2007-0025.
(c) Who must be served. Copies of all documents filed with FTA shall
be served by the entity filing them on all parties to the proceeding. A
certificate of service shall accompany all documents when they are
tendered for filing and shall certify concurrent service on FTA and all
parties. Certificates of service shall be in substantially the following
form:
I hereby certify that I have this day served the foregoing [name of
document] on the following persons at the following addresses and e-mail
or facsimile numbers (if also served by e-mail or facsimile) by [specify
method of service]:
[list persons, addresses, and e-mail or facsimile numbers]
Dated this -------- day of --------, 20----.
[signature], for [party]
(d) Method of service. Except as otherwise provided in Sec. 604.26,
or agreed by the parties and the Presiding Official, as appropriate, the
method of service is personal delivery or U.S. mail.
(e) Presumption of service. There shall be a presumption of lawful
service:
(1) When acknowledgment of receipt is by a person who customarily or
in the ordinary course of business receives mail at the address of the
party or of the person designated under this section; or
(2) When a properly addressed envelope, sent to the last known
address has been returned as undeliverable, unclaimed, or refused.
Subpart G_Investigations
Sec. 604.32 Investigation of complaint.
(a) If, based on the pleadings, there appears to be a reasonable
basis for investigation, FTA shall investigate the subject matter of the
complaint.
(b) The investigation may include a review of written submissions or
pleadings of the parties, as supplemented by any informal investigation
FTA considers necessary and by additional information furnished by the
parties at FTA request. Each party shall file documents that it
considers sufficient to present all relevant facts and argument
necessary for FTA to determine whether the recipient is in compliance.
(c) The Chief Counsel shall send a notice to complainant(s) and
respondent(s) once an investigation is complete, but not later than 90
days after receipt of the last pleading specified in Sec. 604.27 was
due to FTA.
Sec. 604.33 Agency initiation of investigation.
(a) Notwithstanding any other provision under these regulations, FTA
may initiate its own investigation of any matter within the
applicability of this Part without having received a complaint. The
investigation may include, without limitation, any of the actions
described in Sec. 604.32.
(b) Following the initiation of an investigation under this section,
FTA sends a notice to the entities subject to investigation. The notice
will set forth the areas of FTA's concern and the reasons; request a
response to the notice within 30 days of the date of service; and inform
the respondent that FTA will, in its discretion, invite good faith
efforts to resolve the matter.
(c) If the matters addressed in the FTA notice are not resolved
informally, the Chief Counsel may refer the matter to a Presiding
Official.
Subpart H_Decisions by FTA and Appointment of a Presiding Official (PO)
Sec. 604.34 Chief Counsel decisions and appointment of a PO.
(a) After receiving a complaint consistent with Sec. 604.27, and
conducting an investigation, the Chief Counsel may:
(1) Issue a decision based on the pleadings filed to date;
(2) Appoint a PO to review the matter; or
(3) Dismiss the complaint pursuant to Sec. 604.28.
(b) If the Chief Counsel appoints a PO to review the matter, the
Chief Counsel shall send out a hearing order that sets forth the
following:
(1) The allegations in the complaint, or notice of investigation,
and the
[[Page 29]]
chronology and results of the investigation preliminary to the hearing;
(2) The relevant statutory, judicial, regulatory, and other
authorities;
(3) The issues to be decided;
(4) Such rules of procedure as may be necessary to supplement the
provisions of this Part;
(5) The name and address of the PO, and the assignment of authority
to the PO to conduct the hearing in accordance with the procedures set
forth in this Part; and
(6) The date by which the PO is directed to issue a recommended
decision.
Sec. 604.35 Separation of functions.
(a) Proceedings under this part shall be handled by an FTA attorney,
except that the Chief Counsel may appoint a PO, who may not be an FTA
attorney.
(b) After issuance of an initial decision by the Chief Counsel, the
FTA employee or contractor engaged in the performance of investigative
or prosecutorial functions in a proceeding under this part shall not, in
that case or a factually related case, participate or give advice in a
final decision by the Administrator or his or her designee on written
appeal, and shall not, except as counsel or as witness in the public
proceedings, engage in any substantive communication regarding that case
or a related case with the Administrator on written appeal.
Subpart I_Hearings.
Sec. 604.36 Powers of a PO.
A PO may:
(a) Give notice of, and hold, pre-hearing conferences and hearings;
(b) Administer oaths and affirmations;
(c) Issue notices of deposition requested by the parties;
(d) Limit the frequency and extent of discovery;
(e) Rule on offers of proof;
(f) Receive relevant and material evidence;
(g) Regulate the course of the hearing in accordance with the rules
of this part to avoid unnecessary and duplicative proceedings in the
interest of prompt and fair resolution of the matters at issue;
(h) Hold conferences to settle or to simplify the issues by consent
of the parties;
(i) Dispose of procedural motions and requests;
(j) Examine witnesses; and
(k) Make findings of fact and conclusions of law and issue a
recommended decision.
Sec. 604.37 Appearances, parties, and rights of parties.
(a) Any party to the hearing may appear and be heard in person and
any party to the hearing may be accompanied, represented, or advised by
an attorney licensed by a State, the District of Columbia, or a
territory of the United States to practice law or appear before the
courts of that State or territory, or by another duly authorized
representative. An attorney, or other duly authorized representative,
who represents a party shall file according to the filing and service
procedures contained in Sec. 604.30 and Sec. 604.31.
(b) The parties to the hearing are the respondent(s) named in the
hearing order, the complainant(s), and FTA, as represented by the PO.
(c) The parties to the hearing may agree to extend for a reasonable
period of time the time for filing a document under this part. If the
parties agree, the PO shall grant one extension of time to each party.
The party seeking the extension of time shall submit a draft order to
the PO to be signed by the PO and filed with the hearing docket. The PO
may grant additional oral requests for an extension of time where the
parties agree to the extension.
(d) An extension of time granted by the PO for any reason extends
the due date for the PO's recommended decision and for the final agency
decision by the length of time in the PO's extension.
Sec. 604.38 Discovery.
(a) Permissible forms of discovery shall be within the discretion of
the PO.
(b) The PO shall limit the frequency and extent of discovery
permitted by this section if a party shows that:
(1) The information requested is cumulative or repetitious;
[[Page 30]]
(2) The information requested may be obtained from another less
burdensome and more convenient source;
(3) The party requesting the information has had ample opportunity
to obtain the information through other discovery methods permitted
under this section; or
(4) The method or scope of discovery requested by the party is
unduly burdensome or expensive.
Sec. 604.39 Depositions.
(a) For good cause shown, the PO may order that the testimony of a
witness may be taken by deposition and that the witness produce
documentary evidence in connection with such testimony. Generally, an
order to take the deposition of a witness is entered only if:
(1) The person whose deposition is to be taken would be unavailable
at the hearing;
(2) The deposition is deemed necessary to perpetuate the testimony
of the witness; or
(3) The taking of the deposition is necessary to prevent undue and
excessive expense to a party and will not result in undue burden to
other parties or in undue delay.
(b) Any party to the hearing desiring to take the deposition of a
witness according to the terms set out in this subpart, shall file a
motion with the PO, with a copy of the motion served on each party. The
motion shall include:
(1) The name and residence of the witness;
(2) The time and place for the taking of the proposed deposition;
(3) The reasons why such deposition should be taken; and
(4) A general description of the matters concerning which the
witness will be asked to testify.
(c) If good cause is shown in the motion, the PO in his or her
discretion, issues an order authorizing the deposition and specifying
the name of the witness to be deposed, the location and time of the
deposition and the general scope and subject matter of the testimony to
be taken.
(d) Witnesses whose testimony is taken by deposition shall be sworn
or shall affirm before any questions are put to them. Each question
propounded shall be recorded and the answers of the witness transcribed
verbatim. The written transcript shall be subscribed by the witness,
unless the parties by stipulation waive the signing, or the witness is
ill, cannot be found, or refuses to sign. The reporter shall note the
reason for failure to sign.
Sec. 604.40 Public disclosure of evidence.
(a) Except as provided in this section, the hearing shall be open to
the public.
(b) The PO may order that any information contained in the record be
withheld from public disclosure. Any person may object to disclosure of
information in the record by filing a written motion to withhold
specific information with the PO. The person shall state specific
grounds for nondisclosure in the motion.
(c) The PO shall grant the motion to withhold information from
public disclosure if the PO determines that disclosure would be in
violation of the Privacy Act, would reveal trade secrets or privileged
or confidential commercial or financial information, or is otherwise
prohibited by law.
Sec. 604.41 Standard of proof.
The PO shall issue a recommended decision or shall rule in a party's
favor only if the decision or ruling is supported by a preponderance of
the evidence.
Sec. 604.42 Burden of proof.
(a) The burden of proof of noncompliance with this part,
determination, or agreement issued under the authority of the Federal
Transit Laws is on the registered charter provider.
(b) Except as otherwise provided by statute or rule, the proponent
of a motion, request, or order has the burden of proof.
Sec. 604.43 Offer of proof.
A party whose evidence has been excluded by a ruling of the PO,
during a hearing in which the respondent had an opportunity to respond
to the offer of proof, may offer the evidence on the record when filing
an appeal.
[[Page 31]]
Sec. 604.44 Record.
(a) The transcript of all testimony in the hearing, all exhibits
received into evidence, all motions, applications requests and rulings,
and all documents included in the hearing record shall constitute the
exclusive record for decision in the proceedings and the basis for the
issuance of any orders.
(b) Any interested person may examine the record by entering the
docket number at http://www.regulations.gov or after payment of
reasonable costs for search and reproduction of the record.
Sec. 604.45 Waiver of procedures.
(a) The PO shall waive such procedural steps as all parties to the
hearing agree to waive before issuance of an initial decision.
(b) Consent to a waiver of any procedural step bars the raising of
this issue on appeal.
(c) The parties may not by consent waive the obligation of the PO to
enter a recommended decision on the record.
Sec. 604.46 Recommended decision by a PO.
(a) The PO shall issue a recommended decision based on the record
developed during the proceeding and shall send the recommended decision
to the Chief Counsel for ratification or modification not later than 110
days after the referral from the Chief Counsel.
(b) The Chief Counsel shall ratify or modify the PO's recommended
decision within 30 days of receiving the recommended decision. The Chief
Counsel shall serve his or her decision, which is capable of being
appealed to the Administrator, on all parties to the proceeding.
Sec. 604.47 Remedies.
(a) If the Chief Counsel determines that a violation of this part
occurred, he or she may take one or more of the following actions:
(1) Bar the recipient from receiving future Federal financial
assistance from FTA;
(2) Order the withholding of a reasonable percentage of available
Federal financial assistance; or
(3) Pursue suspension and debarment of the recipient, its employees,
or its contractors.
(b) In determining the type and amount of remedy, the Chief Counsel
shall consider the following factors:
(1) The nature and circumstances of the violation;
(2) The extent and gravity of the violation (``extent of deviation
from regulatory requirements'');
(3) The revenue earned (``economic benefit'') by providing the
charter service;
(4) The operating budget of the recipient;
(5) Such other matters as justice may require; and
(6) Whether a recipient provided service described in a cease and
desist order after issuance of such order by the Chief Counsel.
(c) The Chief Counsel office may mitigate the remedy when the
recipient can document corrective action of alleged violation. The Chief
Counsel's decision to mitigate a remedy shall be determined on the basis
of how much corrective action was taken by the recipient and when it was
taken. Systemic action to prevent future violations will be given
greater consideration than action simply to remedy violations identified
during FTA's inspection or identified in a complaint.
(d) In the event the Chief Counsel finds a pattern of violations,
the remedy ordered shall bar a recipient from receiving Federal transit
assistance in an amount that the Chief Counsel considers appropriate.
(e) The Chief Counsel may make a decision to withhold Federal
financial assistance in a lump sum or over a period of time not to
exceed five years.
Subpart J_Appeal to Administrator and Final Agency Orders
Sec. 604.48 Appeal from Chief Counsel decision.
(a) Each party adversely affected by the Chief Counsel's office
decision may file an appeal with the Administrator within 21 days of the
date of the Chief Counsel's issued his or her decision. Each party may
file a reply to an appeal within 21 days after it is served on
[[Page 32]]
the party. Filing and service of appeals and replies shall be by
personal delivery consistent with Sec. Sec. 604.30 and 604.31.
(b) If an appeal is filed, the Administrator reviews the entire
record and issues a final agency decision based on the record that
either accepts, rejects, or modifies the Chief Counsel's decision within
30 days of the due date of the reply. If no appeal is filed, the
Administrator may take review of the case on his or her own motion. If
the Administrator finds that the respondent is not in compliance with
this part, the final agency order shall include a statement of
corrective action, if appropriate, and identify remedies.
(c) If no appeal is filed, and the Administrator does not take
review of the decision by the office on the Administrator's own motion,
the Chief Counsel's decision shall take effect as the final agency
decision and order on the twenty-first day after the actual date the
Chief Counsel's decision was issued.
(d) The failure to file an appeal is deemed a waiver of any rights
to seek judicial review of the Chief Counsel's decision that becomes a
final agency decision by operation of paragraph (c) of this section.
Sec. 604.49 Administrator's discretionary review of the Chief Counsel's
decision.
(a) If the Administrator takes review on the Administrator's own
motion, the Administrator shall issue a notice of review by the twenty-
first day after the actual date of the Chief Counsel's decision that
contains the following information:
(1) The notice sets forth the specific findings of fact and
conclusions of law in the decision subject to review by the
Administrator.
(2) Parties may file one brief on review to the Administrator or
rely on their post-hearing briefs to the Chief Counsel's office. Briefs
on review shall be filed not later than 10 days after service of the
notice of review. Filing and service of briefs on review shall be by
personal delivery consistent with Sec. 604.30 and Sec. 604.31.
(3) The Administrator issues a final agency decision and order
within 30 days of the due date of the briefs on review. If the
Administrator finds that the respondent is not in compliance with this
part, the final agency order shall include a statement of corrective
action, if appropriate, and identify remedies.
(b) If the Administrator takes review on the Administrator's own
motion, the decision of the Chief Counsel is stayed pending a final
decision by the Administrator.
Subpart K_Judicial Review
Sec. 604.50 Judicial review of a final decision and order.
(a) A person may seek judicial review in an appropriate United
States District Court of a final decision and order of the Administrator
as provided in 5 U.S.C. 701-706. A party seeking judicial review of a
final decision and order shall file a petition for review with the Court
not later than 60 days after a final decision and order is effective.
(b) The following do not constitute final decisions and orders
subject to judicial review:
(1) FTA's decision to dismiss a complaint as set forth in Sec.
604.29;
(2) A recommended decision issued by a PO at the conclusion of a
hearing; or
(3) A Chief Counsel decision that becomes the final decision of the
Administrator because it was not appealed within the stated timeframes.
Sec. Appendix A to Part 604--Listing of Human Service Federal Financial
Assistance Programs
Federal Programs Providing Transportation Assistance
------------------------------------------------------------------------
------------------------------------------------------------------------
1........ Food Stamp, Food and Nutrition Department of
Employment and Service. Agriculture.
Training Program.
2........ Voluntary Public Office of Department of
School Choice. Innovation and Education.
Improvement.
3........ Assistance for Office of Special Department of
Education of All Education and Education.
Children with Rehabilitative
Disabilities--IDEA. Services.
[[Page 33]]
4........ Centers for Office of Special Department of
Independent Living. Education and Education.
Rehabilitative
Services.
5........ Independent Living Office of Special Department of
for Older Education and Education.
Individuals Who Rehabilitative
Are Blind. Services.
6........ Independent Living Office of Special Department of
State Grants. Education and Education.
Rehabilitative
Services.
7........ Supported Office of Special Department of
Employment Education and Education.
Services for Rehabilitative
Individuals with Services.
Most Significant
Disabilities.
8........ Vocational Office of Special Department of
Rehabilitative Education and Education.
Grants. Rehabilitative
Services.
9........ Social Service Administration for Department of
Block Grant. Children and Health and Human
Families. Services.
10....... Child Care and Administration for Department of
Development Fund. Children and Health and Human
Families. Services.
11....... Head Start......... Administration for Department of
Children and Health and Human
Families. Services.
12....... Refugee and Entrant Administration for Department of
Assistance Children and Health and Human
Discretionary Families. Services.
Grants.
13....... Refugee and Entrant Administration for Department of
Assistance State Children and Health and Human
Administered Families. Services.
Programs.
14....... Refugee and Entrant Administration for Department of
Targeted Children and Health and Human
Assistance. Families. Services.
15....... Refugee and Entrant Administration for Department of
Assistance Children and Health and Human
Voluntary Agency Families. Services.
Programs.
16....... State Development Administration for Department of
Disabilities Children and Health and Human
Council and Families. Services.
Protection &
Advocacy.
17....... Temporary Administration for Department of
Assistance to Children and Health and Human
Needy Families. Families. Services.
18....... Community Services Administration for Department of
Block Grant. Children and Health and Human
Families. Services.
19....... Promoting Safe and Administration for Department of
Stable Families. Children and Health and Human
Families. Services.
20....... Developmental Administration for Department of
Disabilities Children and Health and Human
Projects of Families. Services.
National
Significance.
21....... Grants for Administration on Department of
Supportive Aging. Health and Human
Services and Services.
Senior Centers.
22....... Programs for Administration on Department of
American Indian, Aging. Health and Human
Alaskan Native and Services.
Native Hawaii
Elders.
23....... Medicaid........... Centers for Department of
Medicaid and Health and Human
Medicare. Services.
24....... State Health Centers for Department of
Insurance Program. Medicaid and Health and Human
Medicare. Services.
25....... Home and Community Centers for Department of
Base Waiver. Medicaid and Health and Human
Medicare. Services.
26....... Community Health Health Resources Department of
Centers. and Services Health and Human
Administration. Services.
[[Page 34]]
27....... Healthy Communities Health Resources Department of
and Services Health and Human
Administration. Services.
28....... HIV Care Formula Health Resources Department of
Program. and Services Health and Human
Administration. Services.
29....... Maternal and Child Health Resources Department of
Health Block Grant. and Services Health and Human
Administration. Services.
30....... Rural Health Care Health Resources Department of
Network. and Services Health and Human
Administration. Services.
31....... Rural Health Care Health Resources Department of
Outreach Program. and Services Health and Human
Administration. Services.
32....... Health Start Health Resources Department of
Initiative. and Services Health and Human
Administration. Services.
33....... Ryan White Care Act Health Resources Department of
Programs. and Services Health and Human
Administration. Services.
34....... Substance Abuse Substance Abuse and Department of
Prevention and Mental Health Health and Human
Treatment Block Services Services.
Grant. Administration.
35....... Prevention and Substance Abuse and Department of
Texas Block Grant. Mental Health Health and Human
Services Services.
Administration.
36....... Community Community Planning Department of
Development Block and Development. Housing and Urban
Grant. Development.
37....... Housing Community Planning Department of
Opportunities for and Development. Housing and Urban
Persons with AIDS. Development.
38....... Supportive Housing Community Planning Department of
Program. and Development. Housing and Urban
Development.
39....... Revitalization of Public and Indian Department of
Severely Housing. Housing and Urban
Distressed Public Development.
Housing.
40....... Indian Employment Bureau of Indian Department of the
Assistance. Affairs. Interior.
41....... Indian Employment, Bureau of Indian Department of the
Training, and Affairs. Interior.
Related Services.
42....... Black Lung Benefits Employment Department of
Standards Labor.
Administration.
43....... Senior Community Employment Department of
Services Standards Labor.
Employment Program. Administration.
44....... Job Corps.......... Employment and Department of
Training Labor.
Administration.
45....... Migrant and Employment and Department of
Seasonal Farm Training Labor.
Worker. Administration.
46....... Native American Employment and Department of
Employment and Training Labor.
Training. Administration.
47....... Welfare to Work Employment and Department of
Grants for Tribes. Training Labor.
Administration.
48....... Welfare to Work for Employment and Department of
States and Locals. Training Labor.
Administration.
49....... Work Incentive Employment and Department of
Grants. Training Labor.
Administration.
50....... Workforce Employment and Department of
Investment Act Training Labor.
Adult Services Administration.
Program.
51....... Workforce Employment and Department of
Investment Act Training Labor.
Adult Dislocated Administration.
Worker Program.
52....... Workforce Employment and Department of
Investment Act Training Labor.
Youth Activities Administration.
Program.
[[Page 35]]
53....... Homeless Veterans Veterans Employment Department of
Reintegration & Training Service. Labor.
Program.
54....... Veterans Employment Veterans Employment Department of
Program. & Training Service. Labor.
55....... Elderly and Persons Federal Transit Department of
with Disability. Administration. Transportation.
56....... New Freedom Program Federal Transit Department of
Administration. Transportation.
57....... Job Access and Federal Transit Department of
Reverse Commute Administration. Transportation.
Program.
58....... Non-Urbanized Area Federal Transit Department of
Program. Administration. Transportation.
59....... Capital Federal Transit Department of
Discretionary Administration. Transportation.
Program.
60....... Urbanized Area Federal Transit Department of
Formula Program. Administration. Transportation.
61....... Automobiles and Veterans Benefits Department of
Adaptive Equipment. Administration. Veterans Affairs.
62....... Homeless Provider Veterans Health Department of
Grants. Administration. Veterans Affairs.
63....... Veterans Medical Veterans Health Department of
Care Benefits. Administration. Veterans Affairs.
64....... Ticket to Work Social Security Department of
Program. Administration. Veterans Affairs.
------------------------------------------------------------------------
Sec. Appendix B to Part 604--Reasons for Removal
The following is guidance on the terms contained in section
604.26(d) concerning reasons for which FTA may remove a registered
charter provider or a qualified human service organization from the FTA
charter registration Web site.
What is bad faith?
Bad faith is the actual or constructive fraud or a design to mislead
or deceive another or a neglect or refusal to fulfill a duty or
contractual obligation. It is not an honest mistake. Black's Law
Dictionary, Revised Fourth Edition, West Publishing Company, St. Paul,
Minn., 1968.
For example, it would be bad faith for a registered charter provider
to respond to a recipient's notification to registered charter providers
of a charter service opportunity stating that it would provide the
service with no actual intent to perform the charter service. It would
also be bad faith if the registered charter provider fails to contact
the customer or provide a quote for charter service within a reasonable
time. Typically, if a registered charter provider fails to contact a
customer or fails to provide a price quote to the customer at least 14
business days before an event, then FTA may remove the registered
charter provider from the registration Web site, which would allow a
transit agency to step back in to provide the service because the
registered charter provider's response to the email would no longer be
effective because it is not registered.
Further, it would be bad faith for a registered charter provider to
submit a quote for charter services knowing that the price is three to
four times higher because of the distance the registered charter
provider must travel (deadhead time). In those situations, FTA may
interpret such quotes as bad faith because they appear to be designed to
prevent the local transit agency from providing the service.
On the other hand, FTA would not interpret an honest mistake of fact
as bad faith. For example, if a registered charter provider fails to
provide charter service in response to a recipient's notification when
it honestly mistook the date, place or time the service was to be
provided. It would not be bad faith if the registered charter provider
responded affirmatively to the email notification sent by the public
transit agency, but then later learned it could not perform the service
and provided the transit agency reasonable notice of its changed
circumstances.
What is fraud?
Fraud is the suggestion or assertion of a fact that is not true, by
one who has no reasonable ground for believing it to be true; the
suppression of a fact by one who is bound to disclose it; one who gives
information of
[[Page 36]]
other facts which are likely to mislead; or a promise made without any
intention of performing it. Black's Law Dictionary, Revised Fourth
Edition, West Publishing Company, St. Paul, Minn., 1968.
Examples of fraud include but are not limited to: (1) A registered
charter provider indicates that it has a current state or Federal safety
certification when it knows that it does not in fact have one; (2) a
broker that owns no charter vehicles registers as a registered charter
provider; or (3) a qualified human service organization represents that
its serves the needs of the elderly, persons with disabilities, or
lower-income individuals, but, in fact, only serves those populations
tangentially.
What is a lapse of insurance?
A lapse of insurance occurs when there is no policy of insurance is
in place. This may occur when there has been default in payment of
premiums on an insurance policy and the policy is no longer in force. In
addition, no other policy of insurance has taken its place. Black's Law
Dictionary, Revised Fourth Edition, West Publishing Company, St. Paul,
Minn., 1968.
What is a lapse of other documentation?
A lapse of other documentation means for example, but is not limited
to, failure to have or loss or revocation of business license, operating
authority, failure to notify of current company name, address, phone
number, email address and facsimile number, failure to have a current
state or Federal safety certification, or failure to provide accurate
Federal or state motor carrier identifying number. Black's Law
Dictionary, Revised Fourth Edition, West Publishing Company, St. Paul,
Minn., 1968.
What is a complaint that does not state a claim that warrants an
investigation or further action by FTA?
A complaint is a document describing a specific instance that
allegedly constitutes a violation of the charter service regulations set
forth in 49 CFR 604.28. More than one complaint may be contained in the
same document. A complaint does not state a claim that warrants
investigation when the allegations made in the complaint, without
considering any extraneous material or matter, do not raise a genuine
issue as to any material question of fact, and based on the undisputed
facts stated in the complaint, there is no violation of the charter
service statute or regulation as a matter of law. Based on Federal Rules
of Civil Procedure, Rule 56(c).
Examples of complaints that would not warrant an investigation or
further action by FTA include but are not limited to: (1) A complaint
against a public transit agency that does not receive FTA funding; (2) a
complaint brought against a public transit agency by a private charter
operator that is neither a registered charter provider nor its duly
authorized representative; (3) a complaint that gives no information as
to when or where the alleged prohibited charter service took place; or
(4) a complaint filed solely for the purpose of harassing the public
transit agency.
[73 FR 44931, Aug. 1, 2008]
Sec. Appendix C to Part 604--Frequently Asked Questions
(a) Applicability (49 CFR Section 604.2)
(1) Q: If the requirements of the charter rule are not applicable to
me for a particular service I provide, do I have to report that service
in my quarterly report?
A: No. If the service you propose to provide meets one of the
exemptions contained in this section, you do not have to report the
service in your quarterly report.
(2) Q: If I receive funds under 49 U.S.C. Sections 5310, 5311, 5316,
or 5317, may I provide charter service for any purpose?
A: No. You may only provide charter service for ``program
purposes,'' which is defined in this regulation as ``transportation that
serves the needs of either human service agencies or targeted
populations (elderly, individuals with disabilities, and/or low income
individuals) * * *'' 49 CFR Section 604.2(e). Thus, your service only
qualifies for the exemption contained in this section if the service is
designed to serve the needs of targeted populations. Charter service
provided to a group, however, that includes individuals who are only
incidentally members of those targeted populations, is not ``for program
purposes'' and must meet the requirements of the rule (for example, an
individual chartering a vehicle to take his relatives including elderly
aunts and a cousin who is a disabled veteran to a family reunion).
(3) Q: If I am providing service for program purposes under one of
the FTA programs listed in 604.2.(e), do the human service organizations
have to register on the FTA Charter Registration Web site?
A: No. Because the service is exempt from the charter regulations,
the organization does not have to register on the FTA Charter
Registration Web site.
(4) Q: What if there is an emergency such as an apartment fire or
tanker truck spill that requires an immediate evacuation, but the
President, Governor, or Mayor never declares it as an emergency? Can a
transit agency still assist in the evacuation efforts?
A: Yes. One part of the emergency exemption is designed to allow
transit agencies to participate in emergency situations without worrying
about complying with the charter
[[Page 37]]
regulations. Since transit agencies are often uniquely positioned to
respond to such emergencies, the charter regulations do not apply. This
is true whether or not the emergency is officially declared.
(5) Q: Do emergency situations involve requests from the Secret
Service or the police department to transport its employees?
A. Generally no. Transporting the Secret Service or police officers
for non-emergency preparedness or planning exercises does not qualify
for the exemption under this section. In addition, if the Secret Service
or the police department requests that a transit agency provide service
when there is no immediate emergency, then the transit agency must
comply with the charter service regulations.
(6) Q: Can a transit agency provide transportation to transit
employees for an event such as the funeral of a transit employee or the
transit agency's annual picnic?
A: Yes. These events do not fall within the definition of charter,
because while the service is exclusive, it is not provided at the
request of a third party and it is not at a negotiated price.
Furthermore, a transit agency transporting its own employees to events
sponsored by the transit agency for employee morale purposes or to
events directly related to internal employee relations such as a funeral
of an employee, or to the transit agency's picnic, is paying for these
services as part of the transit agency's own administrative overhead.
(7) Q: Is sightseeing service considered to be charter?
A: ``Sightseeing'' is a different type of service than charter
service. ``Sightseeing'' service is regularly scheduled round trip
service to see the sights, which is often accompanied by a narrative
guide and is open to the public for a set price. Public transit agencies
may not provide sightseeing service with federally funded assets or
assistance because it falls outside the definition of ``public
transportation'' under 49 U.S.C. Section 5302(a) (10), unless FTA
provides written concurrence for that service as an approved incidental
use. While, in general, ``sightseeing'' service does not constitute
charter service, ``sightseeing'' service that also meets the definition
of charter service would be prohibited, even as an incidental use.
(8) Q: If a private provider receives Federal funds from one of the
listed programs in this section, does that mean the private provider
cannot use its privately owned equipment to provide charter service?
A: No. A private provider may still provide charter services even
though it receives Federal funds under one of the programs listed in
this section. The charter regulations only apply to a private provider
during the time period when it is providing public transportation
services under contract with a public transit agency.
(9) Q: What does FTA mean by the phrase ``non-FTA funded
activities''?
A: Non-FTA funded activities are those activities that are not
provided under contract or other arrangement with a public transit
agency using FTA funds.
(10) Q: How does a private provider know whether an activity is FTA-
funded or not?
A: The private provider should refer to the contract with the public
transit agency to understand the services that are funded with Federal
dollars.
(11) Q: What if the service is being provided under a capital cost
of contracting scenario?
A: When a private operator receives FTA funds through capital cost
of contracting, the only expenses attributed to FTA are those related to
the transit service provided. The principle of capital cost of
contracting is to pay for the capital portion of the privately owned
assets used in public transportation (including a share of preventive
maintenance costs attributable to the use of the vehicle in the
contracted transit service). When a private operator uses that same
privately owed vehicle in non-FTA funded service, such as charter
service, the preventive maintenance and capital depreciation are not
paid by FTA, so the charter rule does not apply.
(12) Q: What if the service is provided under a turn-key scenario?
A: To the extent the private charter provider is standing in the
shoes of the public transit agency, the charter rules apply. Under a
turn-key contract, where the private operator provides and operates a
dedicated transit fleet, then the private provider must abide by the
charter regulations for the transit part of its business. The charter
rule would not apply, however, to other aspects of that private
provider's business. FTA also recognizes that a private operator may use
vehicles in its fleet interchangeably. So long as the operator is
providing the number, type, and quality of vehicles contractually
required to be provided exclusively for transit use and is not using FTA
funds to cross-subsidize private charter service, the private operator
may manage its fleet according to best business practice.
(13) Q: Does FTA's rule prohibit a private provider from providing
charter service when its privately owned vehicles are not engaged in
providing public transportation?
A: No. The charter rule is only applicable to the actual public
transit service provided by the private operator. As stated in 49 CFR
604.2(c), the rule does not apply to the non-FTA funded activities of
private charter operators. The intent of this provision was to isolate
the impacts of the charter rule on private operators to those instances
where they stood in the shoes of a transit agency.
(14) Q: May a private provider use vehicles whose acquisition was
federally funded to provide private charter services?
[[Page 38]]
A: It depends. A private provider, who is a sub-recipient or sub-
grantee, when not engaged in providing public transit using federally
funded vehicles, may provide charter services using federally funded
vehicles only in conformance with the charter regulations. Vehicles,
whose only federal funding was for accessibility equipment, are not
considered to be federally funded vehicles in this context. In other
words, vehicles, whose lifts are only funded under FTA programs, may be
used in charter service.
(15) Q: May a public transit agency provide ``seasonal service''
(e.g., service May through September for the summer beach season)?
A: ``Seasonal service'' that is regular and continuing, available to
the public, and controlled by the public transit agency meets the
definition of public transportation and is not charter service. The
service should have a regular schedule and be planned in the same manner
as all the other routes, except that it is run only during the periods
when there is sufficient demand to justify public transit service; for
example, the winter ski season or summer beach season. ``Seasonal
service'' is distinguishable from charter service provided for a special
event or function that occurs on an irregular basis or for a limited
duration, because the seasonal transit service is regular and continuing
and the demand for service is not triggered by an event or function. In
addition, ``seasonal service'' is generally more than a month or two,
and the schedule is consistent from year to year, based on calendar or
climate, rather than being scheduled around a specific event.
(b) Definitions (49 CFR Section 604.3)
(16) Q: The definition of charter service does not include demand
response services, but what happens if a group of individuals request
demand response service?
A: Demand response trips provide service from multiple origins to a
single destination, a single origin to multiple destinations, or even
multiple origins to multiple destinations. These types of trips are
considered demand response transit service, not charter service, because
even though a human service agency pays for the transportation of its
clients, trips are scheduled and routed for the individuals in the
group. Service to individuals can be identified by vehicle routing that
includes multiple origins, multiple destinations, or both, based on the
needs of individual members of the group, rather than the group as a
whole. For example, demand response service that takes all of the
members of a group home on an annual excursion to a baseball game. Some
sponsored trips carried out as part of a Coordinated Human Services
Transportation Plan, such as trips for Head Start, assisted living
centers, or sheltered workshops may even be provided on an exclusive
basis where clients of a particular agency cannot be mixed with members
of the general public or clients of other agencies for safety or other
reasons specific to the needs of the human service clients.
(17) Q: Is it charter if a demand response transit service carries a
group of individuals with disabilities from a single origin to a single
destination on a regular basis?
A: No. Daily subscription trips between a group living facility for
persons with developmental disabilities to a sheltered workshop where
the individuals work, or weekly trips from the group home to a
recreation center is ``special transportation'' and not considered
charter service. These trips are regular and continuous and do not meet
the definition of charter.
(18) Q: If a third party requests charter service for the exclusive
use of a bus or van, but the transit agency provides the service free of
charge, is it charter?
A: No. The definition of charter service under 49 CFR Section
604.3(c) (1), requires a negotiated price, which implies an exchange of
money. Thus, free service does not meet the negotiated price
requirement. Transit agencies should note, however, that a negotiated
price could be the regular fixed route fare or when a third party
indirectly pays for the regular fare.
(19) Q: If a transit agency accepts a subsidy for providing shuttle
service for an entire baseball season, is that charter?
A: Yes. Even though there are many baseball games over several
months, the service is still to an event or function on an irregular
basis or for a limited duration for which a third party pays in whole or
in part. In order to provide the service, a transit agency must first
provide notice to registered charter providers.
(20) Q: If a transit agency contracts with a third party to provide
free shuttle service during football games for persons with
disabilities, is that charter?
A: Yes. Even though the service is for persons with disabilities,
the transit agency receives payment from a third party for an event or
function that occurs on an irregular basis or for a limited duration. In
order for a transit agency to provide the service, it must provide
notice to the list of registered charter providers first.
(21) Q: What if a business park pays the transit agency to add an
additional stop on its fixed route to include the business park, is that
charter?
A: No. The service is not to an event or function and it does not
occur on an irregular basis or for a limited duration.
(22) Q: What if a university pays the transit agency to expand its
regular fixed route to include stops on the campus, is that charter?
A: No. The service is not to an event or function and it does not
occur on an irregular basis or for a limited duration.
(23) Q: What if a university pays the transit agency to provide
shuttle service that does
[[Page 39]]
not connect to the transit agency's regular routes, is that charter?
A: Yes. The service is provided at the request of a third party, the
university, for the exclusive use of a bus or van by the university
students and faculty for a negotiated price.
(24) Q: What if the university pays the transit agency to provide
shuttle service to football games and graduation, is that charter?
A: Yes. The service is to an event or function that occurs on an
irregular basis or for a limited duration. As such, in order to provide
the service, a transit agency must provide notice to the list of
registered charter providers.
(25) Q: What happens if a transit agency does not have fixed route
service to determine whether the fare charged is a premium fare?
A: A transit agency should compare the proposed fare to what it
might charge for a similar trip under a demand response scenario.
(26) Q: How can a transit agency tell if the fare is ``premium''?
A: The transit agency should analyze its regular fares to determine
whether the fare charged is higher than its regular fare for comparable
services. For example, if the transit agency proposes to provide an
express shuttle service to football games, it should look at the regular
fares charged for express shuttles of similar distance elsewhere in the
transit system. In addition, the service may be charter if the transit
agency charges a lower fare or no fare because of a third party subsidy.
(27) Q: What if a transit agency charges a customer an up front
special event fare that includes the outbound and inbound trips, is that
a premium fare?
A: It depends. If the transit agency charges the outbound and
inbound fares up front, but many customers don't travel both directions,
then the fare may be premium. This would not be true generally for park
and ride lots, where the customer parks his or her car, and, would most
likely use transit to return to the same lot. Under that scenario, the
transit agency may collect the regular outbound and inbound fare up
front.
(28) Q: What if a transit agency wishes to create a special pass for
an event or function on an irregular basis or for a limited duration
that allows a customer to ride the transit system several times for the
duration of the event, is that charter?
A: It depends. If the special pass costs more than the fare for a
reasonable number of expected individual trips during the event, then
the special pass represents a premium fare. FTA will also consider
whether a third party provides a subsidy for the service.
(29) Q: Is it a third party subsidy if a third party collects the
regular fixed route fare for the transit agency?
A. Generally no. If the service provided is not at the request of a
third party for the exclusive use of a bus or van, then a third party
collecting the fare would not qualify the service as charter. But, a
transit agency has to consider carefully whether the service is at the
request of an event planner. For example, a group offers to make
``passes'' for its organization and then later work out the payment to
the transit agency. The transit agency can only collect the regular fare
for each passenger.
(30) Q: If the transit agency is part of the local government and an
agency within the local government pays for service to an event or
function of limited duration or that occurs on an irregular basis, is
that charter?
A: Yes. Since the agency pays for the charter service, whether by
direct payment or transfer of funds through internal local government
accounts, it represents a third party payment for charter service. Thus,
the service would meet the definition of charter service under 49 CFR
Section 604.3(c) (1).
(31) Q: What if an organization requests and pays for service
through an in-kind payment such as paying for a new bus shelter or
providing advertising, is that charter?
A: Yes. The service is provided at the request of a third party for
a negotiated price, which would be the cost of a new bus shelter or
advertising. The key here is the direct payment for service to an event
or function. For instance, advertising that appears on buses for regular
service does not make it charter.
(32) Q: Under the definition of ``Government Officials,'' does the
government official have to currently hold an office in government?
A: Yes. In order to take advantage of the Government Official
exception, the individual must hold currently a government position that
is elected or appointed through a political process.
(33) Q: Does a university qualify as a QHSO?
A: No. Most universities do not have a mission of serving the needs
of the elderly, persons with disabilities, or low income individuals.
(34) Q: Do the Boy Scouts of America qualify as a QHSO?
A: No. The Boy Scouts of America's mission is not to serve the needs
of the elderly, persons with disabilities, or low income individuals.
(35) Q: What qualifies as indirect financial assistance?
A: The inclusion of ``indirect'' financial assistance as part of the
definition of ``recipient'' covers ``subrecipients.'' In other words,
``subrecipients'' are subject to the charter regulation. FTA modified
the definition of
[[Page 40]]
recipient in the final rule to clarify this point.
(c) Exceptions (49 CFR Subpart B)
(36) Q: In order to take advantage of the Government Officials
exception, does a transit agency have to transport only elected or
appointed government officials?
A: No, but there has to be at least one elected or appointed
government official on the trip.
(37) Q: If a transit agency provides notice regarding a season's
worth of service and some of the service will occur in less than 30
days, does a registered charter provider have to respond within 72 hours
or 14 days?
A: A transit agency should provide as much notice as possible for
service that occurs over several months. Thus, a transit agency should
provide notice to registered charter providers more than 30 days in
advance of the service, which would give registered charter provider 14
days to respond to the notice. Under pressure to begin the service
sooner, the transit agency could provide a separate notice for only that
portion of the service occurring in less than 30 days.
(38) Q: Does a transit agency have to contact registered charter
providers in order to petition the Administrator for an event of
regional or national significance?
A: Yes. A petition for an event of regional or national significance
must demonstrate that not only has the public transit agency contacted
registered charter providers, but also demonstrate how the transit
agency will include registered charter providers in providing the
service to the event of regional or national significance.
(39) Q: Where does a transit agency have to file its petition?
A: A transit agency must file the petition with the ombudsman at
[email protected]. FTA will file all petitions in the
Petitions to the Administrator docket (FTA-2007-0022) at http://
www.regulations.gov.
(40) Q: What qualifies as a unique and time sensitive event?
A: In order to petition the Administrator for a discretionary
exception, a public transit agency must demonstrate that the event is
unique or that circumstances are such that there is not enough time to
check with registered charter providers. Events that occur on an annual
basis are generally not considered unique or time sensitive.
(41) Q: Is there any particular format for quarterly reports for
exceptions?
A: No. The report must contain the information required by the
regulations and clearly identify the exception under which the transit
agency performed the service.
(42) Q: May a transit agency lease its vehicles to one registered
charter provider if there is another registered charter provider that
can perform all of the requested service with private charter vehicles?
A: No. A transit agency may not lease its vehicles to one registered
charter provider when there is another registered charter provider that
can perform all of the requested service. In that case, the transit
vehicles would enable the first registered charter provider to charge
less for the service than the second registered charter provider that
uses all private charter vehicles.
(43) Q: Where do I submit my reports?
A: FTA has adapted its electronic grants making system, TEAM, to
include charter rule reporting. Grantees should file the required
reports through TEAM. These reports will be available to the public
through FTA's charter bus service Web page at: http://
ftateamweb.fta.dot.gov/Teamweb/CharterRegistration/
QueryCharterReport.aspx. State Departments of Transportation are
responsible for filing charter reports on behalf of its subrecipients
that do not have access to TEAM.
(d) Registration and Notification (49 CFR Subpart C)
(44) Q: May a private provider register to receive notice of charter
service requests from all 50 States?
A: Yes. A private provider may register to receive notice from all
50 States; however, a private provider should only register for those
states for which it can realistically originate service.
(45) Q: May a registered charter provider select which portions of
the service it would like to provide?
A: No. A registered charter provider may not ``cherry pick'' the
service described in the notice. In other words, if the e-mail
notification describes service for an entire football season, then a
registered charter provider that responds to the notice indicating it
can provide only a couple of weekends of service would be non-responsive
to the e-mail notice. Public transit agencies may, however, include
several individual charter events in the e-mail notification. Under
those circumstances, a registered charter provider may select from those
individual events to provide service.
(46) Q: May a transit agency include information on ``special
requests'' from the customer in the notice to registered charter
providers?
A: No. A transit agency must strictly follow the requirements of 49
CFR Section 604.14, otherwise the notice is void. A transit agency may,
however, provide a generalized statement such as ``Please do not respond
to this notice if you are not interested or cannot perform the service
in its entirety.''
(47) Q: What happens if a transit agency sends out a notice
regarding charter service, but later decides to perform the service free
of charge and without a third party subsidy?
[[Page 41]]
A: If a transit agency believes it may receive the authority to
provide the service free of charge, with no third party subsidy, then it
should send out a new e-mail notice stating that it intends to provide
the service free of charge.
(48) Q: What happens if a registered charter provider initially
indicates interest in providing the service described in a notice, but
then later is unable to perform the service?
A: If the registered charter provider acts in good faith by
providing reasonable notice to the transit agency of its changed
circumstances, and that registered charter provider was the only one to
respond to the notice, then the transit agency may step back in and
provide the service.
(49) Q: What happens if a registered charter provider indicates
interest in providing the service, but then does not contact the
customer?
A: A transit agency may step back in and provide the service if the
registered charter provider was the only one to respond affirmatively to
the notice.
(50) Q: What happens if a registered charter provider indicates
interest in providing the service, contacts the customer, and then fails
to provide a price quote to the customer?
A: If the requested service is 14 days or less away, a transit
agency may step back in and provide the service if the registered
charter provider was the only one to respond affirmatively to the notice
upon filing a complaint with FTA to remove the registered charter
provider from the FTA Charter Registration Web site. If the complaint of
``bad faith'' negotiations is not sustained by FTA, the transit agency
may face a penalty, as determined by FTA. If the requested service is
more than 14 days away, and the transit agency desires to step back in,
then upon filing a complaint alleging ``bad faith'' negotiations that is
sustained by FTA, the transit agency may step back in.
(51) Q: What happens if a transit agency entered into a contract to
perform charter service before the effective date of the final rule?
A: If the service described in the contract occurs after the
effective date of the final rule, the service must be in conformance
with the new charter regulation.
(52) Q: What if the service described in the notice requires the use
of park and ride lots owned by the transit agency?
A: If the transit agency received Federal funds for those park and
ride lots, then the transit agency should allow a registered charter
provider to use those lots upon a showing of an acceptable incidental
use (the transit agency retains satisfactory continuing control over the
park and ride lot and the use does not interfere with the provision of
public transportation) and if the registered charter provider signs an
appropriate use and indemnification agreement.
(53) Q: What if the registered charter provider does not provide
quality charter service to the customer?
A: If a registered charter provider does not provide service to the
satisfaction of the customer, the customer may pursue a civil action
against the registered charter provider in a court of law. If the
registered charter provider also demonstrated bad faith or fraud, it can
be removed from the FTA Charter Registration Web site.
(e) Complaint & Investigation Process
(54) Q: May a trade association or other operators that are unable
to provide requested charter service have the right to file a complaint
against the transit agency?
A: Yes. A registered charter operator or its duly authorized
representative, which can include a trade association, may file a
complaint under section 604.26(a). Under the new rule, a private charter
operator that is not registered with FTA's charter registration Web site
may not file a complaint.
(55) Q: Is there a time limit for making complaints?
A: Yes. Complaints must be filed within 90 days of the alleged
unauthorized charter service.
(56) Q: Are there examples of the likely remedies FTA may impose for
a violation of the charter service regulations?
A: Yes. Appendix D contains a matrix of likely remedies that FTA may
impose for a violation of the charter service regulations.
(57) Q: When a complaint is filed, who is responsible for
arbitration or litigation costs?
A: FTA will pay for the presiding official and the facility for the
hearing, if necessary. Each party involved in the litigation is
responsible for its own litigation costs.
(58) Q: What affirmative defenses might be available in the
complaint process?
A: An affirmative defense to a complaint could state the
applicability of one of the exceptions such as 49 CFR Section 604.6,
which states that the service that was provided was within the allowable
80 hours of government official service.
(59) Q: What can a transit agency do if it believes that a
registered charter provider is not bargaining in good faith with a
customer?
A: If a transit agency believes that a registered charter provider
is not bargaining in good faith with the customer, the transit agency
may file a complaint to remove the registered charter provider from
FTA's Charter Registration Web site.
(60) Q: Does a registered charter provider have to charge the same
fare or rate as a public transit agency?
A: No. A registered charter provider is not under an obligation to
charge the same fare or rate as public transit agency. A registered
[[Page 42]]
charter provider, however, must charge commercially reasonable rates.
(61) Q: What actions can a private charter operator take when it
becomes aware of a transit agency's plan to engage in charter service
just before the date of the charter?
A: As soon as a registered charter provider becomes aware of an
upcoming charter event that it was not contacted about, then it should
request an advisory opinion and cease and desist order. If the service
has already occurred, then the registered charter provider may file a
complaint.
(62) Q: When a registered charter provider indicates that there are
no privately owned vehicles available for lease, must the public transit
agency investigate independently whether the representation by the
registered charter provider is accurate?
A: No. The public transit agency is not required to investigate
independently whether the registered charter provider's representation
is accurate unless there is reason to suspect that the registered
charter provider is committing fraud. Rather, the public transit agency
need only confirm that the number of vehicles owned by all registered
charter providers in the geographic service area is consistent with the
registered charter provider's representation.
(63) Q: How will FTA determine the remedy for a violation of the
charter regulations?
A: Remedies will be based upon the facts of the situation, including
but not limited to, the extent of deviation from the regulations and the
economic benefit from providing the charter service. See section 604.47
and Appendix D for more details.
(64) Q: Can multiple violations in a single finding stemming from a
single complaint constitute a pattern of violations?
A: Yes. A pattern of violations is defined as more than one finding
of unauthorized charter service under this part by FTA beginning with
the most recent finding of unauthorized charter service and looking back
over a period not to exceed 72 months. While a single complaint may
contain several allegations, the complaint must allege more than a
single event that included unauthorized charter service in order to
establish a pattern of violations.
(f) Miscellaneous
(65) Q: If a grantee operates assets that are locally funded are
such assets subject to the charter regulations?
A: It depends. If a recipient receives FTA funds for operating
assistance or stores its vehicles in a FTA-funded facility or receives
indirect FTA assistance, then the charter regulations apply. The fact
that the vehicle was locally funded does not make the recipient exempt
from the charter regulations. If both operating and capital funds are
locally supplied, then the vehicle is not subject to the charter service
regulations.
(66) Q: What can a public transit agency do if there is a time
sensitive event, such as a presidential inauguration, for which the
transit agency does not have time to consult with all the private
charter operators in its area?
A: 49 Section 604.11 provides a process to petition the FTA
Administrator for permission to provide service for a unique and time
sensitive event. A presidential inauguration, however, is not a good
example of a unique and time sensitive event. A presidential
inauguration is an event with substantial advance planning and a transit
agency should have time to contact private operators. If the
inauguration also includes ancillary events, the public transit agency
should refer the customer to the registration list.
(67) Q: Are body-on-van-chassis vehicles classified as buses or vans
under the charter regulation?
A: Body-on-van-chassis vehicles are treated as vans under the
charter regulation.
(68) Q: When a new operator registers, may recipients continue under
existing contractual agreements for charter service?
A: Yes. If the contract was signed before the new private operator
registered, the arrangement can continue for up to 90 days. During that
90 day period, however, the public transit agency must enter into an
agreement with the new registrant. If not, the transit agency must
terminate the existing agreement for all registered charter providers.
(69) Q: Must a public transit agency continue to serve as the lead
for events of regional or national significance, if after consultation
with all registered charter providers, registered charter providers have
enough vehicles to provide all of the service to the event?
A. No. If after consultation with registered charter providers,
there is no need for the public transit vehicles, then the public
transit agency may decline to serve as the lead and allow the registered
charter providers to work directly with event organizers. Alternatively,
the public transit entity may retain the lead and continue to coordinate
with event organizers and registered charter providers.
(70) Q: What happens if a customer specifically requests a trolley
from a transit agency and there are no registered charter providers that
have a trolley?
A: FTA views trolleys as buses. Thus, all the privately owned buses
must be engaged in service and unavailable before a transit agency may
lease its trolley. Alternatively, the transit agency could enter into an
agreement with all registered charter providers in its geographic
service area to allow it to provide trolley charter services.
(71) Q: How does a transit agency enter into an agreement with all
registered charter providers in its geographic service area?
[[Page 43]]
A: A public transit agency should send an email notice to all
registered charter providers of its intent to provide charter service. A
registered charter provider must respond to the email notice either
affirmatively or negatively. The transit agency should also indicate in
the email notification that failure to respond to the email notice
results in concurrence with the notification.
(72) Q: Can a registered charter provider rescind its affirmative
response to an email notification?
A: Yes. If after further consideration or a change in circumstances
for the registered charter provider, a registered charter provider may
notify the customer and the transit agency that it is no longer
interested in providing the requested charter service. At that point,
the transit agency may make the decision to step back in to provide the
service.
(73) Q: What happens after a registered charter provider submits a
quote for charter services to a customer? Does the transit agency have
to review the quote?
A: Once a registered charter provider responds affirmatively to an
email notification and provides the customer a commercially reasonable
quote, then the transit agency may not step back in to perform the
service. A transit agency is not responsible for reviewing the quote
submitted by a registered charter provider. FTA recommends that a
registered charter provider include in the quote an expiration date for
the offer.
[73 FR 44931, Aug. 1, 2008]
Sec. Appendix D to Part 604--Table of Potential Remedies
Remedy Assessment Matrix:
[GRAPHIC] [TIFF OMITTED] TR11AU08.015
FTA's Remedy Policy
-- This remedy policy applies to decisions by the Chief Counsel,
Presiding Officials, and final determinations by the Administrator.
-- Remedy calculation is based on the following elements:
(1) The nature and circumstances of the violation;
(2) The extent and gravity of the violation (``extent of deviation
from regulatory requirements'');
(3) The revenue earned (``economic benefit'') by providing the
charter service;
(4) The operating budget of the recipient;
(5) Such other matters as justice may require; and
(6) Whether a recipient provided service described in a cease and
desist order after issuance of such order by the Chief Counsel.
[73 FR 44935, Aug. 1, 2008; 73 FR 46554, Aug. 11, 2008]
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 44]]
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 45]]
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 46]]
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 47]]
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 48]]
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 49]]
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.
Sec. 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 50]]
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 51]]
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 52]]
another entity under lease or otherwise.
[41 FR 18239, Apr. 30, 1976, as amended at 61 FR 19562, May 2, 1996]
Sec. 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 53]]
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 54]]
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 55]]
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 56]]
(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 57]]
(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 58]]
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 59]]
(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.
Sec. 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 60]]
(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 61]]
(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 450, subpart C, shall be followed in
complying with the requirements of this subpart. The definitions in 23
CFR 450, subpart A, shall apply.
[72 FR 7285, Feb. 14, 2007]
Subpart B_Statewide Transportation Planning and Programming
Sec. 613.200 Statewide transportation planning and programming.
The regulations in 23 CFR 450, subpart B, shall be followed in
complying with the requirements of this subpart. The definitions in 23
CFR 450, subpart A, shall apply.
[72 FR 7285, Feb. 14, 2007]
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.
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.
[[Page 62]]
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, 5301(e), 5323(b),
and 5324; Safe, Accountable, Flexible, Efficient Transportation Equity
Act: A Legacy for Users (Pub. L. 109-59, Aug. 10, 2005, 119 Stat. 1144);
40 CFR parts 1500 et seq.; 49 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. The procedures for complying with 49 U.S.C.
303, commonly known as ``Section 4(f),'' are set forth in part 774 of
title 23 of the Code of Federal Regulations.
[73 FR 13401, Mar. 12, 2008]
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]
PART 624_CLEAN FUELS GRANT PROGRAM--Table of Contents
Sec.
624.1 Eligible applicant.
624.3 Eligible activities.
624.5 Application process.
624.7 Certification.
624.9 Grant requirements.
624.11 Reporting.
Authority: 49 U.S.C. 5308; 49 U.S.C. 5334(a); 49 CFR 1.51.
Source: 67 FR 40104, June 11, 2002, unless otherwise noted.
[[Page 63]]
Sec. 624.1 Eligible applicant.
(a) An eligible applicant is:
(1) A designated recipient (designated recipient has the same
meaning as in 49 U.S.C. 5307(a)(2)); or
(2) A recipient for an urbanized area with a population of less than
200,000 (smaller urbanized area). The State in which the smaller
urbanized area is located shall act as the recipient.
(b) An eligible applicant, as defined in paragraph (a) of this
section, shall operate in an area that is either:
(1) An ozone or carbon monoxide nonattainment area as specified
under section 107(d) of the Clean Air Act (42 U.S.C. 7407(d)); or
(2) A maintenance area for ozone or carbon monoxide.
[72 FR 15052, Mar. 30, 2007]
Sec. 624.3 Eligible activities.
(a) Eligible activities include purchasing or leasing clean fuel
buses and constructing new or improving existing public transportation
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) At the discretion of the Administrator, projects relating to
clean fuel, biodiesel, hybrid electric, or zero emissions technology
buses that exhibit equivalent or superior emissions reductions to
existing clean fuel or hybrid electric technologies.
(4) The Federal share for eligible activities undertaken for the
purpose of complying with or maintaining compliance with the Clean Air
Act under this program shall be limited to 90 percent of the net
(incremental) cost of the activity.
(i) The Administrator may exercise discretion and determine the
percentage of the Federal share for eligible activities to be less than
90 percent.
(ii) An administrative determination per this subsection will be
published in accordance with Sec. 624.5(a).
(5) Funding for clean diesel buses shall be limited to not more than
25 percent of the amount made available each fiscal year to carry out
the program.
(6) Any amount made available for this section shall remain
available to an eligible activity for two years after the fiscal year
for which the amount is provided. Any amount that remains unobligated at
the end of the three-year-period shall be added to the amount made
available to carry out the program in the following fiscal year.
[67 FR 40104, June 11, 2002, as amended at 72 FR 15053, Mar. 30, 2007]
Sec. 624.5 Application process.
(a) FTA shall publish a Notice of Funding Availability in the
Federal Register each fiscal year that funding is made available for the
Clean Fuels program. The notice shall provide the criteria by which the
eligible projects will be evaluated for selection and the
Administrator's determination of the net Federal share for projects
funded under this Part.
(b) The Administrator shall determine the criteria for selecting
proposed projects for funding, which may include, but are not limited to
the following factors:
(1) Whether the proposed project is a transportation control measure
in an approved State Implementation Plan;
[[Page 64]]
(2) The benefits of the proposed project in reducing transportation-
related pollutants;
(3) Consistency with the recipient's fleet management plan;
(4) The applicant's ability to implement the project and facilities
to maintain and fuel the proposed vehicles;
(5) The applicant's coordination of the proposed project with other
public transportation entities or other related projects within the
applicant's Metropolitan Planning Organization or the geographic region
within which the proposed project will operate.
(6) The proposed project's ability to support emerging clean fuels
technologies or advanced technologies for transit buses.
[72 FR 15053, Mar. 30, 2007]
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 Grant requirements.
A grant under this section shall be subject to the following
requirements of 49 U.S.C. 5307(d):
(a) General. All recipients shall maintain and report financial and
operating information on an annual basis, as prescribed in 49 CFR part
630, and the most recent National Transit Database Reporting Manual.
(b) Labor standards. As a condition of financial assistance under 49
U.S.C. 5308, the interests of employees affected by the assistance shall
be protected under arrangements that the Secretary of Labor concludes
are fair and equitable.
(c) Satisfactory continuing control. An FTA grantee shall:
(1) Maintain control over federally funded property;
(i) Ensure that it is used in transit service; and
(ii) Dispose of it in accordance with Federal requirements.
(2) Under this paragraph (c), if the grantee leases federally funded
property to another party, the lease must provide the grantee
satisfactory continuing control over the use of that property as
determined in two areas: real property (land) and facilities; and
personal property (equipment and rolling stock, both revenue and non-
revenue).
(d) Maintenance. The grant applicant shall certify annually that
pursuant to 49 U.S.C. 5307(d)(1)(C), it will maintain (federally funded)
facilities and equipment. In addition, the grantee shall keep equipment
and facilities acquired with Federal assistance in good operating order,
which includes maintenance of rolling stock (revenue and non-revenue),
machinery and equipment, and facilities.
(e) Rates charged elderly and persons with disabilities during
nonpeak hours. In accordance with 49 U.S.C. 5307(d)(1)(D), the grant
applicant shall certify that the rates charged the elderly and persons
with disabilities during nonpeak hours for fixed-route transportation
using facilities and equipment financed with Federal assistance from FTA
will not exceed one-half of the rates generally applicable to other
persons at peak hours, whether the operation is by the applicant or by
another entity under lease or otherwise.
(f) Use of competitive procurements. Pursuant to 49 U.S.C.
5307(d)(1)(E), the grant applicant shall certify that it will use
competitive procurements and will not use procurements employing
exclusionary or discriminatory specifications.
(g) Compliance with Buy America provisions. The grant applicant
shall certify that in carrying out a procurement authorized for this
program, the applicant will comply with applicable Buy America laws.
(h) Certification that local funds are available for the project.
The grant applicant shall certify that the local funds are or will be
available to carry out the project.
(i) Compliance with national policy concerning elderly persons and
individuals with disabilities. The grant applicant shall certify that it
will comply with the requirements of 49 U.S.C. 5301(d) concerning the
rights of elderly persons and persons with disabilities.
(j) FTA Master Agreement. The grant applicant shall comply with
applicable
[[Page 65]]
provisions of the FTA Master Agreement which is incorporated by
reference in the grant agreement.
[72 FR 15053, Mar. 30, 2007]
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 shall report semiannually the following information to the
appropriate FTA Regional Office for the first three years of the useful
life of the vehicle:
(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 that
purchase or lease clean diesel vehicles are not required to report
information beyond FTA grant reporting requirements for capital
projects.
[67 FR 40104, June 11, 2002, as amended at 72 FR 15053, Mar. 30, 2007]
PART 630_NATIONAL TRANSIT DATABASE--Table of Contents
Subpart A_General
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.
Authority: 49 U.S.C. 5307, 5311, 5335, and 49 CFR 1.51.
Source: 72 FR 68761, Dec. 6, 2007, unless otherwise noted.
Sec. 630.1 Purpose.
The purpose of this part is to prescribe requirements and procedures
necessary for compliance with the National Transit Database Reporting
System and Uniform System of Accounts, as mandated by 49 U.S.C. 5335,
and to set forth the procedures for addressing a reporting entity's
failure to comply with these requirements.
Sec. 630.2 Scope.
This part applies to all applicants for, and any person that
receives benefits directly from, a grant under 49 U.S.C. 5307 or 5311.
Sec. 630.3 Definitions.
(a) Except as otherwise provided, terms defined in 49 U.S.C. 5302 et
seq. apply to this part.
(b) Except as otherwise provided, terms defined in the current
editions of the National Transit Database Reporting Manuals and the NTD
Uniform System of Accounts 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 49 U.S.C. 5307 or
5311.
Assistance means Federal financial assistance for the planning,
acquisition, construction, or operation of public transportation
services.
Beneficiary means any entity that receives benefits from assistance
under 49 U.S.C. 5307 or 5311.
Current edition of the National Transit Database Reporting Manuals
and Uniform System of Accounts means the most recently issued editions
of the reference documents.
Days mean calendar days.
Reference Document(s) means the current editions of the National
Transit Database Reporting Manuals and Uniform System of Accounts. These
documents are subject to periodic revision. Beneficiaries and applicants
are responsible for using the current editions of the reference
documents.
[[Page 66]]
Reporting entity means a transit agency, a State Department of
Transportation that is a recipient of grants under 49 U.S.C. 5311, or a
Federally-recognized Indian Tribe that is a direct recipient of grants
under 49 U.S.C. 5311.
State Department of Transportation means the Department of
Transportation of a State of the United States, the District of
Columbia, Puerto Rico, the Northern Mariana Islands, Guam, American
Samoa, or the U.S. Virgin Islands.
Transit agency means an entity providing public transportation as
defined in 49 U.S.C. 5302.
Sec. 630.4 Requirements.
(a) National Transit Database Reporting System. Each applicant for
and beneficiary of Federal financial assistance under 49 U.S.C. 5307 or
5311 must comply with the applicable requirements of 49 U.S.C. 5335, as
set forth in the reference documents. State Departments of
Transportation shall provide reports on behalf of their subrecipients of
grants under 49 U.S.C. 5311 as specified in the reference documents.
Transit agencies that are beneficiaries of grants under both 49 U.S.C.
5307 and 5311 must file an individual report as an urbanized area
transit agency. Federally-recognized Indian Tribes that are direct
beneficiaries of grants under 49 U.S.C. 5311 must file an individual
report. State Departments of Transportation should not report on behalf
of transit agencies that have filed individual reports as urbanized area
transit agencies nor on behalf of Indian Tribes that are required to
file an individual report.
(b) Copies. Copies of reference documents are available from the
National Transit Database Web site located at http://www.ntdprogram.gov.
These reference documents are subject to periodic revision. Revisions of
reference documents will be posted on the National Transit Database Web
site and a notice of any significant changes to the reporting
requirements specified in these reference documents will be published in
the Federal Register.
Sec. 630.5 Failure to report data.
Failure to report data in accordance with this part will result in
the noncompliant reporting entity being ineligible to receive any
Section 5307 or 5311 grants directly or indirectly until such time as a
report is filed in accordance with this part.
Sec. 630.6 Late and incomplete reports.
(a) Late reports. Each reporting entity shall ensure that FTA
receives its report by the due dates prescribed in the reference
documents. A reporting entity may request a 30 day extension to submit
its report. FTA will treat a failure to submit the required report by
the due date or the extension date as failure to report data under Sec.
630.5.
(b) Incomplete reports. FTA will treat an NTD submission that does
not contain all of the required data; or does not contain the required
certifications, where applicable; or that is not in substantial
conformance with the definitions, procedures, and format requirements
set out in the reference documents as a failure to report data under
Sec. 630.5, unless the reporting entity has exhausted all possibilities
for obtaining this information.
Sec. 630.7 Failure to respond to questions.
FTA will review each NTD submission to verify the reasonableness of
the data submitted. If any of the data do not appear reasonable, FTA
will notify the reporting entity of this fact in writing, and request
written justification from the reporting entity to either document the
accuracy of the questioned data, or to revise the questioned data with a
more accurate submission. Failure of a reporting entity to make a good-
faith written response to this request will be treated as a failure to
report data under Sec. 630.5.
Sec. 630.8 Questionable data items.
FTA may enter a zero, or adjust any questionable data item(s), in
any reporting entity's NTD submission that is used in computing the
Section 5307 apportionment. These adjustments may be made if any data
appears to be inaccurate, have not been collected and reported in
accordance with FTA reference documents, or if there is not adequate
documentation and a reliable recordkeeping system.
[[Page 67]]
Sec. 630.9 Notice of FTA action.
Before taking final action under Sec. Sec. 630.5 or 630.8, FTA will
transmit a written request to the reporting entity to provide the
necessary information within a specified reasonable period of time. FTA
will advise the reporting entity of its final decision.
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 Section 5307 apportionment may
be discovered after any particular year's apportionment is completed. If
so, FTA shall make adjustments to correct these errors in a subsequent
year's apportionment to the extent feasible.
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.
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,
[[Page 68]]
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.
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
[[Page 69]]
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;
(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.
[[Page 70]]
(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 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]
[[Page 71]]
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.
(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
[[Page 72]]
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.
(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.
[[Page 73]]
(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
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.
[[Page 74]]
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]
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
[[Page 75]]
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 paragraphs (b), and (c) 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.
(c) A recipient operating a ferryboat regulated by the United States
Coast Guard (USCG) that satisfactorily complies with the testing
requirements of 46 CFR Parts 4 and 16, and 33 CFR Part 95 shall be in
concurrent compliance with the testing requirements of this part. This
exception shall not apply to the provisions of section 655.45, or
subparts G, or H of this part.
[66 FR 42002, Aug. 9, 2001, as amended at 71 FR 69198, Nov. 30, 2006]
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
(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.)
[[Page 76]]
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 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
[[Page 77]]
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.