[Federal Register Volume 74, Number 14 (Friday, January 23, 2009)]
[Notices]
[Pages 4284-4285]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-1412]


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DEPARTMENT OF TRANSPORTATION

Federal Transit Administration

[Docket FTA-2009-0003]


Notice of Proposed Policy Statement for Eligible New Freedom 
Projects

AGENCY: Federal Transit Administration (FTA), DOT.

ACTION: Notice.

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SUMMARY: The Federal Transit Administration (FTA) is proposing to 
expand the type of projects it considers to be ``beyond the ADA'' and 
thus increase the types of projects eligible for funding under the New 
Freedom program. Under the proposed interpretation, new and expanded 
fixed route and demand responsive transit service designed to meet the 
needs of individuals with disabilities would be eligible projects.

DATES: FTA must receive all comments by February 23, 2009. FTA will 
consider late-filed comments to the extent practicable.

ADDRESSES: To ensure your comments are not entered more than once into 
the Docket, please identify your submissions with the following Docket 
No. FTA-2009-0003. Please make your submissions by only one of the 
following means:
    Federal eRulemaking Portal: http://www.regulations.gov. Follow the 
online instructions for submitting comments.
    Fax: 1-202-493-2251.
    U.S. Post or Express Mail: U.S. Department of Transportation, 
Docket Operations, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Ave., SE., Washington, DC 20590.
    Hand Delivery: The West Building of the U.S. Department of 
Transportation, 1200 New Jersey Ave., SE., Washington, DC 20590, 
between 9 a.m. and 5 p.m., Monday through Friday, except Federal 
holidays.
    Instructions: You must include the agency name (Federal Transit 
Administration) and the Docket number (FTA-2009-0003) at the beginning 
of your comment. You should include two copies of your comment if you 
submit it by mail. If you wish to receive confirmation that FTA 
received your comment, you must include a self-addressed stamped 
postcard. Note that FTA will post all comments that it receives, 
including any personal information provided therein, without change to 
http://www.regulations.gov.
    Due to security procedures in effect since October 2001 regarding 
mail deliveries, mail received through the U.S. Postal Service may be 
subject to delays. Anyone submitting a comment responsive to this 
notice should consider using an express mail firm to ensure the prompt 
filing of any submissions not filed electronically or by hand.

FOR FURTHER INFORMATION CONTACT: Bonnie L. Graves, Attorney-Advisor, 
Legislation and Regulations Division, Office of Chief Counsel, Federal 
Transit Administration, 1200 New Jersey Ave., SE., Washington, DC 
20590, phone: (202) 366-4011, fax: (202) 366-3809, or e-mail, 
[email protected]; or David Schneider, same address, (202) 493-
0175, or e-mail, [email protected].

SUPPLEMENTARY INFORMATION:

Background

    The New Freedom Program (49 U.S.C 5317) was established to fund 
capital and operating expenses that support new public transportation 
services and public transportation alternatives beyond those required 
by the Americans with Disabilities Act (ADA), in order to assist 
individuals with disabilities with transportation, including 
transportation to and from jobs and employment support services.
    When developing guidance for the New Freedom program, FTA initially 
proposed that ``new public transportation services'' and ``public 
transportation alternatives beyond those required by the ADA'' be 
considered separate categories of service. (See 71 FR 13456, Mar. 15, 
2006). Subsequent to this notice, FTA received feedback from the 
Congressional authors of the New Freedom program that projects that do 
not meet both criteria--new and beyond the ADA--are not eligible for 
funding.
    FTA also determined that projects are ``beyond the ADA'' only if 
they allow a recipient to exceed its obligations under the ADA. For 
example, because the ADA and its implementing regulations at 49 CFR 
parts 37 and 38 provide very specific minimum requirements for 
complementary paratransit service when an agency provides fixed route 
service, New Freedom funds can be used to expand the scope of ADA 
complementary paratransit service beyond the minimum requirements 
stipulated in the ADA regulations at 49 CFR part 37. On the other hand, 
the ADA does not require that a minimum level of public transit service 
be provided in any given area. Once service is provided, however, it 
must be ADA compliant, so FTA determined that projects to establish or 
expand fixed route or demand responsive service would not result in an 
agency exceeding its obligations under the ADA, and therefore would not 
be eligible for New Freedom funding. This interpretation was conveyed 
in subsequent Federal Register notices on the New Freedom program (71 
FR 52610, Sept. 6, 2006, and 72 FR 14851, Mar. 29, 2007) and in the 
Frequently Asked Questions document on FTA's website: http://www.fta.dot.gov/funding/grants/grants_financing_3549.html.
    Over the past several months, grant recipients have expressed 
concerns that FTA's interpretation of which projects go ``beyond the 
ADA'' prevents agencies in rural and small urbanized areas with limited 
public transportation service from using New Freedom funds to provide 
new fixed route or demand response service targeted to meet the

[[Page 4285]]

needs of people with disabilities. Stakeholders argue that these types 
of projects do go ``beyond the ADA'' because they represent 
transportation services that are not required under the Act or under 
the U.S. DOT ADA implementing regulations.
    Although stakeholders in areas with limited public transportation 
service can use New Freedom funds to implement new alternatives to 
public transportation, such as accessible taxis, travel training, and 
mobility management, many potential recipients have informed FTA that 
their greatest need is for new fixed route or demand responsive 
transportation services for people with disabilities.

Proposed FTA Policy

    FTA proposes that new or expanded fixed route service and new or 
expanded demand response service would be eligible for New Freedom 
funding provided that:
    (1) The service is identified in the locally developed, coordinated 
public transit-human services transportation plan;
    (2) The service is designed to meet the needs of individuals with 
disabilities;
    (3) The service removes barriers to transportation and assists 
persons with disabilities with transportation;
    (4) The service was not operational on August 10, 2005, and did not 
have an identified funding source as of August 10, 2005, as evidenced 
by inclusion in the Transportation Improvement Program (TIP) or the 
State Transportation Improvement Program (STIP); and
    (5) The service is not designed to allow an agency to meet its 
obligations under the ADA or the DOT ADA implementing regulations at 49 
CFR parts 37 and 38.
    This policy change retains the existing requirement that services 
under the program be ``new'' services and adopts the interpretation 
voiced by transportation providers that transit services other than 
those that are required to be implemented under the ADA go ``beyond the 
ADA.'' Examples of newly eligible projects would be fixed route service 
extended to serve a congregate living facility or a workplace serving 
large numbers of individuals with disabilities; new or expanded demand 
responsive service, including new hours or days of operation, or 
increased geographic coverage, to meet the needs of individuals with 
disabilities. FTA encourages transit providers to include the general 
public in any service that is added, that is, that providers not create 
new ``silo'' transportation that is limited to individuals with 
disabilities. FTA also notes that expanded fixed route service may 
result in expanded ADA complementary paratransit service; since the ADA 
complementary paratransit service is required under the ADA, it would 
not be eligible for New Freedom funding. All new or expanded fixed 
route and demand responsive services funded under the New Freedom 
program will be subject to the requirements of the ADA and DOT ADA 
implementing regulations.

    Issued in Washington, DC, this 15th day of January 2009.
Severn E.S. Miller,
Acting Deputy Administrator.
 [FR Doc. E9-1412 Filed 1-22-09; 8:45 am]
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