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APTA SAFETEA-LU Webinar
Wednesday, September 14, 2005 2:00 PM ET
Replies to Audience Online Text Chat Questions
Submitted during Webinar
NOTE: Following are answers in reply to the numerous questions posed by audience members using the text chat facility during APTA's recent webinar. APTA is most grateful to our panel of experts for providing the following replies to over 60 questions asked by audience members during the recent webinar.
The answers to these questions provided by FTA are for information only and do not constitute official USDOT or FTA policy. FTA will issue regulations and guidance documents, with opportunities for public notice and comment, which will address these same subjects in more detail.
Joyce Rose, House Committee on Transportation and Infrastructure, provided the response where so indicated (Questions 33, 34, 35, and 54).
Index of Questions and Answers -- test
NEW FREEDOM AND JARC (SECTIONS 5316 and 5317)
1. For New Freedom and JARC, will FTA be publishing amounts in the federal register for specific TMA areas in each state, and then the amount for the small urban and rural projects?
ANSWER:
When we issue the Federal Register Notice of apportionments and allocations for FY 2006, we will publish the amounts apportioned directly to the urbanized areas over 200,000 (TMAs) for the New Freedom and JARC programs. We will publish the amount apportioned to each state for urbanized areas smaller than 200,000 and for rural areas. Each state and UZA will allocate the funds for projects in these areas based on a competitive selection process. For information purposes only, in the SAFETEA-LU tables posted on the website we included the amounts attributable to each small urbanized area based on the formula factors, just as we do for the Governor's apportionment under Section 5307, but in the Federal Register Notice of Apportionments we will publish the total amount apportioned to the State for all small urbanized areas.
2. What if any are the guidelines for New Freedom programs?
ANSWER:
FTA is currently soliciting input and comments from the public via listening sessions and later Federal Register notices on implementation strategies for the New Freedom Program. Once this process is complete a circular will be developed that outlines the guidelines for the program. Prior to the development of the circular, FTA will put out a Federal Register Notice that will include guidance for implementing the program in FY 2006.
3. For the New Freedom Initiative - is the formula strictly based on the disabled population or will it also consider the elderly population who will also have a lot of the same mobility needs for those alternative services?
ANSWER:
The New Freedom Program is designed to provide services and public transportation alternatives for disabled individuals beyond those required by the Americans with Disabilities Act of 1990. The formula for the program is based on the ratio of disabled individuals in an area to the total disabled population in the corresponding category (non urbanized, urbanized area less than 200,000 in population and urbanized area greater than 200,000 in population.) The census data used for individuals with disabilities includes elderly individuals with disabilities.
4. What percentage of non-federal match will be required under the New Freedom program?
ANSWER:
New Freedom funds can fund 80% of capital expenses, 50% of operating expenses. Up to 10% of the apportionment is available for administration, planning, and technical assistance. The remainder of the net project costs can come from other non-Department of Transportation federal funds eligible for transportation projects, as well as local contributions and contract revenue.
5. Will the ADA definition of Disability apply for New Freedoms AND is access to job related training and education an eligible purpose?
ANSWER:
The New Freedom Program aims to provide funds for transportation services beyond those required by the Americans with Disabilities Act of 1990 (ADA). However, projects funded must be in compliance with the ADA - for example vehicles must meet the accessibility requirements of ADA. Services developed under the New Freedom program may serve individuals with disabilities beyond those eligible for ADA paratransit. The ADA definition of persons with disabilities, however, is quite comprehensive. Funds are available to fund services aimed at providing transportation to and from job and employment support services.
6. Regarding New Freedom, will the grants be for capital, operating, or both? Are the grants contingent on population size?
ANSWER:
The grants can be for both capital and operating and the size of the grant will only be limited by the amount of funds available to the recipient.
7. What is FTA's timeline for developing guidelines for implementing New Freedom initiative and definition of a human service transportation plans.
8. When do you expect to have regulations out for New Freedoms funds?
ANSWER:
FTA is working to develop guidance for the New Freedom Program by the end of Spring 2006. However, interim guidance for administering the program in fiscal year 2006 will published in a Federal Register notice. FTA is currently in the process of seeking input from stakeholders prior to the development of guidance for the public transit-human services transportation plans that will be required prior to receiving funds in fiscal year 2007. The guidance will be put out for public review and comment before being finalized.
9. Regarding New Freedom, if I buy a vehicle with 5310 funds, can I use it for New Freedom service too in a coordinated manner? And if so, how will you apply 13(c)? What are the Coordinated Human Service Plans? Who is writing the regulations for these plans? Who has plan development, submittal, and review responsibility and approval?
ANSWER:
- FTA encourages the coordination of services and equipment funded by programs funded by FTA and other agencies so long as the program purposes for which the equipment was acquired are met. The local coordinated plan required for 5310, New Freedom, and JARC might well envision a unified service supported by all three programs.
- Neither section 5310 nor section 5317 (New Freedom) require that labor protections be certified pursuant to 5333(b) [AKA 13(c)].
- SAFETEA-LU requires that by FY 2007, projects selected under Section 5310, New Freedom, and JARC be derived from a locally developed coordinated public transit/human service transportation plan.
- FTA will develop guidance regarding these plans, which will be made available for public comment before it is finalized. In areas over 200,000 population, the designated recipient must conduct an area wide solicitation for applications in cooperation with the appropriate MPO. For areas under 200,000 the state conducts the solicitation. In both cases, the designated recipient must certify that projects selected were derived from a locally developed plan. SAFETEA-LU specifies that the plan must be "developed through a process that included representatives of public, private, and nonprofit transportation and human service providers and participation by the public" but does not specify the lead agency, the geographic area encompassed by "local", or review and approval procedures.
10. With the change in JARC from a discretionary to a formula program, will the same rules apply for what you can use JARC funds for?
ANSWER:
While JARC changed from a discretionary/competitive program to a formula program, the definitions of eligible access to jobs and reverse commute project in SAFETEA-LU are the same as in TEA-21. The Conference Report accompanying SAFETEA-LU included the following language: "The conferees expect the FTA to continue its practice of providing maximum flexibility to job access projects that are designed to meet the needs of individuals who are not effectively served by public transportation, consistent with the use of funds described in the Federal Register, Volume 67 (April 8, 2002)."
11. It is my understanding that JARC is now distributed to areas over 200,000K based upon low-income populations. I also understand that JARC for rural communities may roll their JARC funding over to 5311. What happens to urban areas over 200,000K that may not use their JARC funding as they don't have this roll over provision?
ANSWER:
In the case of large urbanized areas, the designated recipient under Section 5307 is responsible, in cooperation with the MPO, for soliciting applications in a competitive selection process. Projects selected must be derived from a locally developed coordinated public transit/human-service transportation plan. The statutory provision that funds be apportioned directly to large urbanized areas assumes that there is need for job access projects in every such area, but does not require that the transit authority provide all the JARC services. Eligible sub-recipients include State and local governmental authorities, nonprofit organizations, and operators of public transportation services. The locally developed plan will identify the service gaps and a strategy for meeting the needs. The transfer provisions in JARC (as well as comparable provisions in New Freedom and 5310) allow the transfer of the funds by the state to 5307 or 5311, but only for the purpose of eligible selected JARC projects (or New Freedom or 5310 projects, respectively). The funds cannot be transferred simply to augment the urbanized or non-urbanized formula program. The purpose of this restriction is to ensure that all the JARC funds are used for the intended purpose, to assist low income individuals with access to jobs, while streamlining grant administration.
12. Can you e-mail/provide that list that you just described for New Freedoms relevant projects to attendees?
ANSWER:
Examples of New Freedom projects described in the Conference Report include:
- Purchasing vehicles and supporting accessible taxi, ride-sharing, and vanpooling programs
- Providing paratransit services beyond minimum requirements (3/4 mile to either side of a fixed route), including routes that run seasonally
- Making accessibility improvements to transit and intermodal stations not designated as key stations
- Supporting voucher programs for transportation services offered by human services providers
- Supporting volunteer driver and aide programs
- Supporting mobility management and coordination programs among public transportation providers and other human service agencies providing transportation
While there are some issues that must be resolved (such as when an accessibility improvement to a "non-key" station is "beyond ADA requirements," given the existing ADA requirements for station alterations), these examples illustrate the kinds of activities that Congress contemplated when adding this provision to SAFETEA-LU.
13. By codifying JARC and the new programs, it is our understanding that SAFETEA-LU makes ADA vehicles under these programs eligible for the 83% federal participation ratio. Does FTA agree? You might also mention the 90% share on ADA-required facility features.
ANSWER:
Yes. Because JARC and New Freedom are now part of Chapter 53 of Title 49, the provisions of Section 5323(i) now apply to these programs. Because JARC was established outside Chapter 53 of Title 49 under TEA-21, Section 5323(i) did not apply, and all grants under JARC (both capital and operating) had a 50 percent Federal share. Further, Section 5323(i) was amended to include ADA (and Clean Fuel) related facilities, not just equipment, as eligible for 90 percent Federal funding. The higher share applies only to the incremental costs related to ADA or to Clean Fuels, not the entire piece of equipment or facility. For administrative convenience, FTA calculated a "blended" share of 83 percent for a bus meeting ADA requirements (counting 90 percent for the portion attributable to these requirements). FTA expects that a bus facility which has a portion devoted to meeting Clean Fuel requirements would have that portion of the facility funded at 90 percent, with the remainder funded at 80 percent. FTA does not expect to establish a blended share for ADA or Clean Fuel facilities, since those projects are likely to be so varied that a single blended share would not be appropriate.
14. Now that the JARC program is formularized can you elaborate on the reason that 5307 small urbans have to apply to the state for these funds instead of applying for them directly like they currently do for 5307?
ANSWER:
Under SAFETEA-LU, the State is responsible for soliciting applications and selecting projects derived from locally developed coordinated public transportation/human-service transportation plans. Once the projects have been selected, however, funds can be transferred to the Section 5307 program so that small urbanized areas can apply directly to FTA for the grant, rather than receiving funds as a sub-recipient of the State.
15. New Freedom Initiative Questions/Issues/Concerns:
It seems that the main purpose of the money is help get people with disabilities to work, and that it's supposed to be for "services and facilities" that exceed the ADA requirements. It also (together with 5310 and JARC) requires a "coordinated human services plan" by FY 2007. So, some of the questions seem to be:
- SAFETEA-LU requires that FTA documents that create a "binding obligation" on grantees must be subject to a notice and comment process with stakeholders -- what is FTA planning beyond this gathering, who will it involve, and when?
- Will NF money be allowed to be used to update/renovate the transit system's own (or contractor) facilities to make them more accessible/usable for current or potential employees with disabilities?
- Given the recent and ongoing "extra-regulatory expansion" of the ADA, how will we know what is "beyond ADA"? How stable will this definition be, or will it change with FTA/DOT staffers' interpretations?
ANSWER:
- FTA will be providing numerous opportunities for comment as the program is implemented. Initial guidance will be providing in a FY 2006 Federal Register Program Notice (much like past Apportionments Notices), on which comment will be solicited. Later, when a program Circular is developed, it will be made available for review and comment by the industry.
- No. The New Freedom Program is intended (49 U.S.C. 5317(b)(1)) to provide "new public transportation services and public transportation alternatives" that assist individuals with disabilities with transportation. Improvements to agency facilities for the benefit of agency employees do not meet this definition.
- The purpose of the New Freedom Initiative is to address remaining barriers to transportation encountered by persons with disabilities; it is not primarily a work-related program. According to the conference report, the New Freedom Initiative (49 USC 5317) is intended to address barriers facing Americans with disabilities seeking integration into the workforce and full participation in society. The Americans with Disabilities Act (ADA) and the U.S. Department of Transportation implementing regulations (49 CFR Parts 27, 37 & 38) contain specific requirements for making transportation systems and services accessible to persons with disabilities; the ADA requires transportation to be accessible, but it does not require transportation to exist. The New Freedom initiative is intended to address some of those unmet travel needs.
The SAFETEA-LU conference report provides examples of the types of projects and activities that Congress views as potentially eligible. See question #12.
While there are some issues that must be resolved (such as when an accessibility improvement to a "non-key" station is "beyond ADA requirements," given the existing ADA requirements for station alterations), these examples illustrate the kinds of activities that Congress contemplated when adding this provision to SAFETEA-LU.
In order to ensure consistency and correctness of interpretations and guidance involving the ADA and other statutes and regulations that prohibit discrimination on the basis of disability (Air Carrier Access Act, Rehabilitation Act, etc.), Secretary Mineta established a Disability Law Coordinating Council (DLCC) on March 31, 2003 to serve as a Department-wide consulting and coordination mechanism. All modal administrations within DOT, including FTA, are represented on the DLCC. Letters, manuals, questions and answers, policy statements or any other written information product made available to outside parties or distributed internally are all subject to this coordination process. Consensus must be achieved before any materials are issued, and the General Counsel, as the chief legal officer for the Department, will resolve any differences where consensus cannot be reached. This process is specifically intended to ensure that interpretations, guidance, and other information is consistent and not dependent upon individual DOT, FTA or other modal administration staff opinions.
16. More New Freedom questions:
- Suppose an area wants to work with a local cab company to get accessible cabs (i.e., "beyond" ADA). Can these vehicles then also be used as part of the basic complementary paratransit service, or are they restricted to "beyond"?
ANSWER:
It would probably depend largely upon the degree to which those vehicles would be involved in the provision of "basic complementary paratransit service." Clearly, it would not be "beyond the ADA" if the taxi operator were to obtain accessible vehicles that were then used primarily to provide complementary paratransit service for the transit operator. However, it may be permissible to provide such services to the transit operator on an incidental basis, provided that it does not impair the taxi operator's ability to provide "regular" taxi service to persons with disabilities who require an accessible vehicle. The intent of the New Freedom Initiative is to support additional services beyond the basic ADA requirements, not to provide additional funding to meet existing requirements.
a. If an area has both urbanized and non-urbanized areas, how is the "coordinated plan" supposed to address the mix? In effect, how does Caltrans (and other state DOTs) have to work with RTPAs to deal with their part of the funding, while there is some apparent "independent" decision-making that can go on with the funds at least for the larger UZAs? Put another way, what kind of state-level or regional planning is envisioned for the "coordinated plan" process for areas that are within the Governor's apportionment?
ANSWER:
In areas under the Governor's apportionment the funds will flow to the state and the state will be responsible for selecting projects through a competitive process. This competitive process differs from the planning process. Although the state will be responsible for selecting projects, it is not necessary that they be involved in the local planning activities; however, if the state decides to be involved that is acceptable. In states that have regional planning agencies, these agencies may take the lead on developing the coordinated plan for its area. In some areas it may be the transit provider, a human service agency, or another entity. These decisions will be made locally.
Funds are allocated to the state and are not entitlements to individual localities under the governor's apportionment. Funds are to be distributed based on a competitive process using criteria established by the state that are consistent with program objectives and federal requirements. Projects selected, whether by the state of by the designated recipient (in large urbanized areas), must be derived from a local coordination plan. A single regional plan might include projects for both a large urbanized area and surrounding areas that receive funds from the State's apportionment.
17. For what Federal Fiscal Year Funding will the new Human Service Plan be required? When will the guidelines for the HS Plan be available? What is the rule making process?
ANSWER:
The coordinated public transit-human services transportation plan will be required prior to receiving funds apportioned for New Freedom, Section 5310, and JARC in fiscal year 2007 (The planning requirement for JARC is effective in FY 2006. Some areas already have JARC plans under the TEA-21 requirement. Applicants new to JARC will begin coordinated planning in FY 2006). FTA is currently in the process of seeking input from stakeholders on implementing this provision. The guidance for developing the public transit-human services transportation plan is being developed in conjunction with the circulars for the JARC, New Freedom, and Section 5310 programs and will go out for public review and comment before being finalized.
ELDERLY AND INDIVIDUALS WITH DISABILTIES PROGRAM (SECTION 5310)
18. Does FTA have any idea how it will select the additional states to participate in the 5310 operating pilot? When might we hear more about this?
19. What criteria will the Secretary use to choose the remaining 3 states under the Section 5310 pilot program?
ANSWER:
FTA plans to issue a Notice in the Federal Register soliciting letters of interest from States this fall. Four States (Wisconsin, Alaska, Minnesota, and Oregon) are specified in Section 3012(b) of SAFETEA-LU; three more are to be selected by FTA. Section 3012(b)(1) indicates that FTA may base its selection on "a State's exemplary coordination of public transit-human services transportation" and may require participants to collect data necessary to support the report required by the law. Any other criteria will be specified in the Notice.
RURAL AND TRIBAL TRANSIT (SECTION 5311)
20. What is a state to do with a 5311 tribal set aside that is only $9K, if there are no tribal subrecipients?
ANSWER:
FTA will not apportion funds to the states under the Section 5311 tribal set-aside. FTA will allocate funds directly to the tribes under the set aside, but the apportionment method is not specified in SAFETEA-LU and has not yet been determined. Solely for the purposes of illustrating how much money might flow to each State under SAFETEA-LU, we included a formula allocation of the tribal set-aside based on tribal population in the State by State SAFETEA-LU summary tables FTA posted on the website. An alternative method might be to apportion funds only to those tribes that respond to a request for letters of intent. FTA will be consulting with tribal leaders in the development of the program.
21. Is the direct funding for Tribes separate from the Alternative Transportation in Parks and Public Lands?
ANSWER:
Yes. The funding for tribes is a set-aside under the Non-Urbanized formula program, while the Alternative Transportation and Parks and Public Lands program is a small (about $22 million per year) discretionary program.
22. Are there requirements that all 5311 FTA recipients have to prepare and adopt a safety & security plan? If yes, could you provide the section of the bill? Does it go beyond 5311 to 5307 or 5310 as well?
ANSWER:
There is no specific requirement for Section 5311 recipients to prepare a separate safety and security plan. However, safety and security are two of the planning factors which must be considered as part of the Statewide Plan which must be developed under Section 5304.
23. Is there recourse for 5311 operating assistance sub recipients who are having difficulty getting the states to release funding in a timely manner?
ANSWER:
Funding cycles have been disrupted in the past two years by late appropriations and incremental extensions of TEA-21. Now that SAFETEA-LU has been enacted, the States should be able to apply for all of their funds shortly after passage of an appropriations act. Each State should have a State Management Plan that describes the State's annual cycle for soliciting applications from sub-recipients. If a sub-recipient or potential sub-recipient thinks the State is not following its plan or is otherwise unreasonably restricting access to the Federal funds, the sub-recipient should contact the FTA regional office for information and/or assistance.
24. The transfer provisions allow for 5310, JARC and NFI to be transferred and administered by recipients under 5311 guidelines. Is there any flexibility to move from 5311 to the other programs?
ANSWER:
No. Section 5311 funds can be transferred to the Section 5307 program for small urbanized areas, but not to JARC, Section 5310, or New Freedom. See Section 5336(f)(2).
URBANIZED AREA FORMULA PROGRAM (SECTION 5307)
25. We have a city that has broken the 50,000 population barrier one year after the 2000 Census. How can we go about getting it designated a small urban area BEFORE the 2010 Census?
ANSWER:
The term "urbanized area" as defined in SAFETEA-LU means an area encompassing a population of not less than 50,000 people that has been defined and designated in the most recent decennial census as an 'urbanized area' by the Secretary of Commerce.
To be reclassified as urbanized prior to the 2010 Census, the city/area in question may request the Census Bureau to undertake a special census. If as a result of the special census the Census Bureau identifies the city/area as a newly qualified urbanized area FTA may include that area in future apportionments for the section 5307 Urbanized Area Formula funds. The city/area will need to communicate directly with the Census Bureau to determine the process, requirements, and cost to conduct of a special census.
26. Exactly how has Transit Enhancement 1% requirement changed?
ANSWER:
Like TEA-21, SAFETEA-LU requires that one percent of section 5307 funds apportioned to an urbanized area with a population of at least 200,000 be spent on eligible transit enhancement activities or projects. Also, a section 5307 grant recipient in these areas is required to submit an annual report on its transit enhancement projects. However, the one percent transit enhancement requirement under SAFETEA-LU is administered as a certification rather than a set-aside. That is, grantees must certify with the submission of the annual Certifications and Assurances that they will expend one percent on transit enhancements. FTA will no longer set aside funds for the one percent in a separate account nor will it show the one percent amount in the agency's annual apportionment notice.
27. You said that enhancements are no longer a set-aside. Does that mean that grant applications no longer need a separate ALI (Activity Line Item code) for the 1% enhancement?
ANSWER:
A grantee should continue to use the ALI codes for transit enhancement for a project or grant activity when applicable. Since the requirement to expend funds for and report on transit enhancement activities is still in effect, use of the transit enhancement ALI codes in preparing the grant project budget will allow FTA to track the amount obligated for transit enhancements by a grantee or urbanized area.
28. Since Transit Enhancements (TE) is now a certification, much like the 1% security, is the annual reporting on TE still required?
ANSWER:
Language in SAFETEA-LU continues the annual reporting requirement for TE. A section 5307 grant recipient in an urbanized area at least 200,000 in population is required to submit an annual report on transit enhancement projects. The report must be submitted with the Federal fiscal year's final quarterly progress report in TEAM-Web.
GROWING STATES AND HIGH DENSITY FORMULAS (SECTION 5340)
29. How is the Section 5340 funding distributed within an urbanized area? Using the Section 5307 formula?
ANSWER:
Separate formulas are used to apportionment Section 5307 and Section 5340 funds to urbanized areas. Under the 5340 formula one-half of the funds are made available under the Growing States factors and are apportioned based on state population forecasts for 15 years beyond the most recent Census; amounts apportioned for each state are then distributed between urbanized areas and rural areas based on the ratio of urban/rural population within each state. The High Density States factors distribute the other half of the funds to states with population densities in excess of 370 persons per square mile. These funds are apportioned only to urbanized areas within those states.
Language in the SAFETEA-LU conference report instructs FTA to merge the resulting urbanized area amounts for the 5307 and 5340 formulas into a single apportionment when it publishes program apportionments.
The distribution or sub-allocation of Section 5307/5340 funds within an urbanized area is a local responsibility. In those urbanized areas with more than one grantee or designated recipient, FTA expects local officials, operating through the MPO and the designated recipient to determine the sub-allocation together. The sub-allocation should be determined fairly and rationally through a process agreeable to the designated recipients.
30. Can growing state and high density funds be used to support operating activities?
ANSWER:
Yes, but only in an urbanized area (or when applicable a portion of the urbanized area) that qualifies under current law. For section 5307 this includes an urbanized area less than 200,000 in population; an urbanized area that crossed over the 200,000 threshold as a result of the 2000 Census; a transit provider or grantee in urbanized areas at least 200,000 in population that meets the exception noted in section 5307(b)(1)(E) or 5307(b)(1)(F) of SAFETEA-LU, or section 3027(c)(3), as amended, of TEA-21. Growing States funds may also be used for operating assistance in nonurbanized areas.
NEW STARTS/SMALL STARTS (SECTION 5309)
31. If your project fits the Small Start criteria, what will be the advantage for using Small Starts rather than New Starts program?
ANSWER:
There may be some advantage to using the Small Starts provisions because the project evaluation criteria for Small Starts are a subset of the criteria for traditional New Starts projects. FTA is also planning to devise a simplified approach to conducting the evaluation of these projects so that the information requirements may be less expensive and time consuming to produce. However, the project must still be justified based on its transportation benefits in order to receive funding. Projects will need to demonstrate that a transportation problem exists in the project corridor, that the proposed project is sensible and cost-effective means of addressing that problem, and that the project sponsor has a well developed plan and the capability to implement the proposed project.
32. Could you please clarify the threshold criteria for rail "Small Starts?"
ANSWER:
The eligibility requirements are fairly well defined in the Statute. The new Small Starts program is provided for fixed guideway projects requesting $75,000,000 or less of New Starts funds with a total cost less than $250,000,000. The project must also be the result of planning and Alternatives Analysis.
The statute also provides an expanded definition of "fixed guideway capital project". The definition is expanded to include corridor based bus capital projects if either of the following criteria is met:
" a substantial portion of the project operates in a separate right-of-way dedicated for public transit use during the peak period, or
" the project represents a substantial investment in a defined corridor as demonstrated by features like park and ride lots, station, bus arrival and departure signage, ITS, traffic signal pre-emption and/or priority, off board fare collection, advanced bus technology, etc…
FTA will further define what "substantial portion" and "substantial investment" mean in the rulemaking process. However, it seems that Congress's intent was that the Small Starts projects can include bus projects that do not have a dedicated bus-way if the projects include a variety of capital improvements that have the effect of reducing bus travel times compared to standard bus service. Therefore, the determination of whether or not a project represents a "substantial investment" or if the dedicated right-of-way section is "substantial" will likely depend on the effectiveness of the project elements in reducing trip times (including waiting and in-vehicle time) in the project corridor.
33. Regarding Small Starts, could you elaborate on what is meant by BRT's "substantial portion" (i.e., Over 50%)?
Joyce Rose (House Committee on Transportation and Infrastructure): H.R. 3, as passed by the House of Representatives, included a more rigid definition of an eligible fixed guideway capital project under the Small Starts program, stating that at least 50 percent of a BRT project's right-of-way had to be dedicated alignment for exclusive use by public transportation vehicles for all or part of the day. However, after speaking to many stakeholders on this issue, the conferees decided to broaden the definition of a fixed guideway capital project under the Small Starts program to incorporate other characteristics that represent substantial investment in a defined corridor, as well as the traditional "fixed guideway" definition of dedicated alignment. This new definition is written in a way that presents project sponsors with two options: the project can build a corridor-based bus capital project (BRT) in which a "substantial portion .... operates in a separate right-of-way", or the project can represent a substantial investment in a defined corridor by demonstrating a number of features (e.g., park and ride lots, transit stations, bus arrival and departure signage, prioritization of traffic signals; off-board fare collection, etc.). Congress intends that the Federal Transit Administration further define the term "substantial portion" in the agency's regulatory process, though the legislative history points toward a marker of "a majority", or at least 50 percent.
34. We are pleased with the flexible definition of small starts which fits into our managed lane concept, but why the limitation for total project cost of $250 million?
Joyce Rose (House Committee on Transportation and Infrastructure): One of the House of Representatives priorities was to have a Small Starts program with a separate funding stream from that of the established New Starts program. One of the main reasons we wanted a separate program was to ensure that projects that are similar in size and scope compete with one another in this separate funding pool. For this reason, we thought it appropriate to include a total net project cost cap, as well as a limit on the amount of Federal investment.
35. In what ways will Congress expect FTA to simplify the New Start rules for Small Starts?
Joyce Rose (House Committee on Transportation and Infrastructure): The Congress wants to maintain the competitive and merit-based nature of the New Starts evaluation and rating process for the new Small Starts program, but hopes that the actual rating and evaluation process will be simpler and quicker than the current program's. The list of factors to be considered by FTA in evaluating a project's justification is much shorter for the Small Starts program than the project justification requirements of the current New Starts Program. The Small Starts factors are that the Secretary must consider the project's: consistency with local land use policies and goals; cost effectiveness at the time of revenue service initiation; positive effect on local economic development; reliability of cost and ridership estimates; and other factors that the Secretary determines appropriate. The Congress expects to work closely with FTA over the next eight months as regulations are promulgated to initiate the Small Starts program in fiscal year 2007.
36. Is this new Alternatives Analysis program the only source of funding for planning funds for the selection of a Locally Preferred Alternative?
ANSWER:
No - Most pre-SAFETEA-LU fund sources for Alternatives Analyses remain available, including FTA's Section 5303 (Metropolitan Planning) and Section 5307 (Urbanized Area Formula Grants) programs. The only source of funds which can no longer be used as a result of this change is section 5309 New Starts funds.
37. Do you have a sense of the schedule for the revisions to the New Starts criteria called for in SAFETEA-LU and what changes might be made?
ANSWER:
SAFETEA-LU calls for FTA to issue guidance within 180 days on how it intends to apply the evaluation criteria but it does not call for a rulemaking, per se. FTA intends to issue the required policy guidance as close as possible to the statutory deadline. FTA will provide notice of the policy guidance and will accept comments on the guidance before it is applied to the New Starts annual report submittals which are due next summer. In addition, FTA intends to issue a revised rule, which would incorporate the Small Starts program as a separate part of the New Starts rule. We expect to issue a Notice of Proposed Rulemaking on New Starts (including Small Starts) in the summer of 2006. We are conducting a comprehensive review of the entire regulation and expect that there will be changes proposed both to the criteria and to the process for evaluating the criteria.
38. What is FTA's understanding of Congress' expectation for simplifying New Starts rules for the Small Starts category?
ANSWER:
Congress specified that Small Starts be evaluated using a subset of the evaluation criteria used for traditional New Starts projects. The degree to which the evaluation criteria will be simplified will be defined in the Rulemaking process. However, FTA expects that some simplification is probable in the following areas:
The project must result from planning and alternatives analysis. However, the level of detail in an alternatives analysis for a relatively simple low end (<$50 million) bus corridor or streetcar improvement, for instance, may be less involved than an alternatives analysis for a major, high end (>$50 million) new guideway. Therefore, FTA envisions that a relatively simple AA and planning process could be used to achieve eligibility for lower cost Small Starts projects.
FTA also envisions that cost-effectiveness will be calculated for Small Starts using different and easier to develop information compared to the traditional New Starts projects. The exact nature of these measures will be defined in the rulemaking process and subsequent guidance.
The financial commitment criterion is simplified insofar as the evaluation period for Small Starts is only the project time period. Traditional New Start projects must demonstrate the ability to construct, operate and maintain the proposed project and existing system into the foreseeable future.
39. What happens to the Small Starts $25M threshold? b. When will the Small Starts rulemaking be completed?
ANSWER:
As stated in the statute, the $25 million threshold disappears after the rulemaking process is complete. Projects will no longer be exempt from the New Starts rating and evaluation process, simply based on their requested funding amount. A proposed project will be subject to the simplified Small Starts process or the standard New Starts process. FTA has established an aggressive standard for issuing the rulemaking by July 2007. However, FTA intends to issue an Advance Notice of Proposed Rulemaking to solicit comments on some principles to be used in developing the rule by January 2006 and a Notice of Proposed Rulemaking by the summer of 2006. It should be noted that a final rule cannot be issued any sooner than 270 days after the NRPM is order to allow sufficient time for public comment on the NPRM (a minimum of 90 days), a very limited time for FTA to review the comments and make changes for inclusion in the final rule (60 days), and mandatory review times for the Office of the Secretary (30 days) and the Office of Management and Budget (90 days).
40. We have heard that there might be a penalty for going over in PE phase in FFGA's, is this true?
ANSWER:
There is no "penalty" involved. However, there is a provision which allows for an increase in the Federal share over that requested by the grantee if 1) the project costs are not more than 10 percent higher than the estimates made going into PE, and 2) the ridership forecast is not less than 90 percent of the forecast going into PE. This was a provision in the Senate bill, is was described in the Senate report as an incentive to ensure that the project is selected during alternatives analysis based on the best possible information about project costs and benefits.
41. Small Starts: a. Can you clarify the lessened FTA review requirements? b. Can project proponents apply for Small Starts now, or do they need to wait until FTA issues these requirements?
ANSWER:
- See the answer to Question 36.
- Small Starts funding begins with Fiscal Year 2007 but FTA cannot make Small Starts funding decisions until it has issued the criteria it will use to make those decisions. Meanwhile, we would encourage project sponsors that have completed the alternatives analysis process to advise us if they intend to seek Small Starts funding in FY 2007 and provide details on where they are in the process Project requesting less than $25 million in New Starts funds remain exempt until the Final Rule for implementing the New Starts provisions in SAFETEA-LU becomes effective.
42. Do you expect that Alternatives Analysis funds for a corridor that remain after selection of the LPA can then be used for PE?
ANSWER:
No. These funds are available only for Alternative Analysis as defined by Section 5309(a)(1). Once the project is approved for entry into Preliminary Engineering, Alternatives Analysis is complete and the activities described in Section 5309(a)(1) are no longer underway. If any funds remain unused, they would have to be deobligated and returned to the program.
FIXED GUIDEWAY MODERNIZATION (SECTION 5309)
43. What is being done or considered to provide addt'l funding for preservation of fixed guideway infrastructure?
ANSWER:
Increased funding levels for the section 5309 fixed guideway modernization (and section 5307) programs under SAFETEA-LU should provide grantee more resources to direct towards the preservation of fixed guideway infrastructure. To a great extent project activities that support the preservation of fixed guideway infrastructure fall under preventive maintenance, which includes vehicle maintenance and non-vehicle maintenance. Non-vehicle maintenance includes all activities associated with facility maintenance including: administration, repair of buildings, grounds and equipment as a result of accidents or vandalism; operation of electric power facilities; and maintenance of vehicle movement control systems, fare collection and counting equipment, structures, tunnels and subways, roadway.
44. Has the definition of "fixed guideway" been changed for the purposes of Section 5307 and 5309 fixed guideway modernization apportionment purposes?
ANSWER:
The definition of "fixed guideway", per se, has not changed. However, concerning apportionment of sections 5307 and 5309 funds, SAFETEA-LU added language at the end of section 5336(b), which stipulates that fixed guideway route-miles includes 60 percent of the directional route miles attributable to the Alaska Railroad passenger services, beginning FY 2006. This language has the effect of permitting fixed guideway mileage for the Alaska Railroad system to be used in the section 5307 and 5309 fixed guideway modernization apportionment calculations.
BUS AND BUS FACILITIES PROGRAM (SECTION 5309)
45. Does discretionary Bus and Bus Facilities Program cover paratransit vehicles and facilities?
ANSWER:
Yes. FTA interprets "bus" broadly to include all types of buses and vans (except trolley buses using overhead catenary, which are classified as fixed guideway, by law).
46. Do the separate discretionary funding categories for (1) bus facilities and (2) clean fuels enhance your chances for funding?
ANSWER:
As both programs are discretionary, the allocation of funding for specific projects is subject to Congressional intent as communicated via the earmarking process. Approximately half of the total amount of funding authorized under the Bus Program, along with a much smaller portion of the Clean Fuels Program, is designated for specific projects in SAFETEA-LU. Congress may choose to earmark the remaining portion during the appropriations process, as it has done with the Bus Program for the last several years. Congress may also choose to eliminate and/or alter the earmarks that already exist in SAFETEA-LU.
Given the potential for Congress to designate many new projects under these programs, it is difficult to predict the degree to which any individual grantee might stand to benefit from the fact that the Clean Fuels Program is defined as a separate discretionary program in SAFETEA-LU. However, because the overall level of authorized spending has been increased in SAFETEA-LU, FTA grantees, as a whole, are expected to receive more federal assistance then they have in the past.
47. Sounded like over half of the Bus and Bus Facilities 5309 funding was earmarked in the bill. Is that correct? If so where can we find those earmarks listed?
ANSWER:
Yes, SAFETEA-LU includes 646 specific project designations under the Bus Program, which account for roughly half of the total amount of funding authorized. A list of these earmarks appears in Section 3044(a) of the bill. The list also includes projects designated for funding under the Clean Fuels Program, which are noted as such in SEC. 3044(b)(1). A copy of the bill can be found on the FTA Reauthorization Page: http://www.fta.dot.gov/17003_ENG_HTML.htm .
CLEAN FUELS PROGRAM (SECTION 5308)
48. For the clean fuels program, is this limited to smaller UZAs or can those over 200,000 population apply?
ANSWER:
The Clean Fuels Program funds may be made available to any urbanized area that is designated as maintenance or nonattainment area for ozone or carbon monoxide as defined in the Clean Air Act.
METROPOLITAN PLANNING (SECTION 5303)
49. Will public participation plan be required of MPO's, transit authorities or both?
ANSWER:
The Participation Plan is required only of MPOs. The Public Participation requirements of recipients of Section 5307 (Urbanized Area Formula Grants) do not call for development of a Participation Plan.
ENVIRONMENTAL PROVISIONS AND ISSUES
50. What sections provide incentives for transportation choices that positively affect the environment?
ANSWER:
The Congestion Mitigation and Air Quality Improvement (CMAQ) Program in Title 23 of the United States Code provides funding for programs and projects that positively affect air quality. Even though CMAQ funds come out of the federal highway program, transit agencies across the country have benefited greatly from CMAQ funding since the inception of the program in 1991. Transit projects as a category have received between 40 and 50 percent of the apportioned funding for this program each year. Recently that has meant over $400 million obligated annually for transit projects in air quality nonattainment and maintenance areas. Several changes to the CMAQ program in SAFETEA-LU (Section 1808) are intended to place greater emphasis on achieving cost-effective emission reductions. This means that priority is to be given to funding cost-effective strategies, such as diesel retrofit projects which are designed to improve air quality. However, as in the past, a wide range of transit projects have been, and will continue to be, eligible for CMAQ funding. Transit projects that expand capacity and increase ridership will fare better to the extent that they can document a reduction in emissions. The new priority to be given to cost-effective projects that reduce transportation emissions means the CMAQ program provides a real incentive to select environmentally beneficial transportation projects. Whether transit will continue to garner 40 to 50 percent of these funds with this new priority remains to be seen.
There are also several public transit programs which provide incentives for transportation choices that positively affect the environment. Section 3010 amended the Clean Fuels Grant Program (49 U.S.C. § 5308) that provides funding for clean fuel vehicles and facilities in ozone and carbon monoxide nonattainment and maintenance areas. Under SAFETEA-LU, the program is now discretionary, rather than a competitive formula. The program provides funding for purchasing or leasing clean fuel buses; constructing or leasing clean fuel bus or electrical recharging facilities; or constructing new or improving existing public transportation facilities to accommodate clean fuel buses. While the program emphasis is on clean fuels, up to 25 percent of the annual appropriated funds for this program may be spent on clean diesel buses.
In addition, SAFETEA-LU authorizes continued funding at levels between $11- and $13.5 million per year for the national fuel cell bus technology development program. This program's goal is to develop and demonstrate a commercially viable fuel-cell passenger bus producing zero pollutant emissions.
51. During the debate on the Bill, there was discussion of streamlining environmental regulations and improving coordination of NEPA, Section 106 and 4(f) review. How is this discussion expressed in SAFETEA-LU?
ANSWER:
SAFETEA-LU serves to better coordinate and improve the environmental review process through a number of means.
The act provides for the integration of environmental considerations into metropolitan and State-wide transportation processes. Long range State transportation plans are expected to include discussions of potential environmental mitigation. State and metropolitan transportation plans are also to be developed in consultation with State and local agencies responsible for land use management, natural resources, environmental protection, conservation, and historic preservation. To the extent that environmental concerns addressed publicly at the metropolitan and State levels satisfy the National Environmental Policy Act, duplication, confusion, and unnecessary delay in the environmental review process can be avoided.
The act provides for early, formal coordination among all potentially interested agencies-Federal, State, and local-in the environmental review process. The Federal lead agency must identify and invite the participation of all such agencies as early as practicable in the environmental review process. Agencies that choose to participate, together with the public, must be provided with an opportunity to be involved in determining a proposed project's purpose and need, as well as the range of alternatives to be considered in the environmental study. The lead agency must also establish a coordination plan that may include a schedule; the coordination plan must be made available to the public. These procedures, which collectively add an element of transparency to the process, are designed to achieve consensus among all interests with respect to the critical initial phase of the environmental review process and avert disagreements that result in delays at a later phase of the process. In the event of subsequent disagreements, however, a formal issue resolution process is prescribed.
The act establishes time limits regarding the public review process and sets forth expectations with respect to related Federal decision-making. With certain exceptions, comment periods on draft environmental impact statements are limited to not more than 60 days, and, for other comment periods in the environmental review process, to 30 days. Unreasonable delays by other Federal agencies in making decisions on matters related to an approved transit project are to be reported to relevant Congressional committees.
Finally, the act provides for Federal funding to States, upon request, to support activities that directly and meaningfully contribute to expediting and improving transportation project planning and delivery.
LABOR PROTECTION (SECTION 5333(b))
52. What was the intent of 13c not applying to some provisions.
ANSWER:
Our understanding of the Congress' intent, particularly flowing from the Senate, is that since these were new programs, there were no existing services whose current workers ought to be covered by the labor protective provisions.
53. What was the change in 13(C) when one private operator replaces another? This is a common situation, particularly in Massachusetts.
ANSWER:
The Secretary of the Department of Labor will issue "fair and equitable determinations involving assurances of employment" when one private transit bus service contractor replaces another through competitive bidding. The decision will be based on previous 1994 decisions. Guidance on this matter will come from the Department of Labor.
GULF COAST RECONSTRUCTION
54. Will the reconstruction in the Gulf Coast affect the funding authorized under SAFETEA-LU?
Joyce Rose (House Committee on Transportation and Infrastructure): Congress is coming to the aid of the victims of Hurricanes Katrina and Rita. Responding to natural disasters is one of the basic functions of government, and funds for that important function should come from the general treasury -- not gas taxes which were imposed for the sole purpose of building and maintaining our transportation system. We anticipate that all eligible emergency transportation-related costs, with the exception of the Federal-aid Highway Emergency Relief program, will come through the Federal Emergency Management Agency, and that FEMA will coordinate closely with the U.S. Department of Transportation in the disbursement of funds to cover those costs, including costs related to transportation infrastructure reconstruction. There should be no impact to any of the funding authorized under SAFETEA LU.
BUY AMERICA
55. What, if any, changes have been made to the Buy America provisions concerning procurement of microprocessor components of radio and camera equipment?
ANSWER:
SAFETEA-LU clarifies that the microprocessor waiver applies only to a device used for processing or storing data, i.e., the microprocessor itself, and does not extend to the entire device in which the microprocessor is contained, such as a radio or camera.
CHARTER BUS
56. Please outline the problems that the new Charter Bus rule will have to solve.
ANSWER:
The Conference report directs FTA to initiate a negotiated rulemaking seeking public comment on the regulations implementing section 5323(d), and to consider these issues:
- Are there potential limited conditions under which public transit agencies can provide community-based charter services directly to local governments and private non-profit agencies that would not otherwise be served in a cost-effective manner by private operators?
- How can the administration and enforcement of charter bus provisions be better communicated to the public, including use of internet technology?
- How can the enforcement of violations of the charter bus regulations be improved?
- How can the charter complaint and administrative appeals process be improved?
PRIVATE ENTERPRISE PARTICIPATION
57. The private sector worked hard to have the discriminatory provisions of Section 5305(e)(3) deleted under the new legislation. With this now done, do you see FTA now moving forward and again requiring public agencies to certify their early consulation to the maximum extent feasible of the private sector in the planning and service restructuring processes?
ANSWER:
While States and MPOs are required to involve the private sector in developing their transportation plans and programs, there is no requirement for explicit certification of those private sector involvement efforts. MPOs are required to prepare a "Participation Plan" that documents the interested parties (organizations) involved in their planning processes, and "private providers of transportation" are listed among the entities to be included in this participation.
GENERAL QUESTION AND ISSUES
58. For the new projects of national significance category, there is a reference to evaluating these projects based on the results of preliminary engineering. Does that mean that these projects must complete PE prior to accessing these funds?
ANSWER:
FHWA is still working out the details of how the new provisions in Section 1301 will operate. On one hand, the legislation lays out a project development process much like that required for New Starts, including approvals to enter each step in the project development process, including final design and construction, and use of full funding grant agreements. On the other hand, section 1301(m) calls for allocation of 20 percent of the funds authorized for each project in each of fiscal years 2005 though 2009.
59. General - can the slides be made available on the APTA or FTA web site for us to share with others? This is a good summary.
60. Will the slides be available on the APTA website that we might download them?
ANSWER:
You can download the presentation from http://online-e-vents.com/aptasafeteaslides .
61. Where can we find a comprehensive copy of the SAFETEA bill?
62. Where can we find a copy of the new law?
ANSWER:
You can find copies of the bill, and related documents on the FTA Reauthorization Page: http://www.fta.dot.gov/17003_ENG_HTML.htm. APTA has a version of 49 USC chapter 53 showing changes made by SAFTEA-LU and other information under its "SAFTEA-LU Resource Center" under the "Government Affairs" section of its website at www.apta.com.
63. Are there any provisions in SAFETEA LU relating to the eligibility of single occupant ultra-low emission vehicles in HOV lanes?
ANSWER:
Section 1121 added a new Section 166 to Title 23, United States Code. 23 U.S.C. 166(b)(5) thus now allows single occupant Inherently Low Emission Vehicles (ILEVs) certified under 40 C.F.R. 88.311-93 and labeled in accordance with 40 C.F.R. 312-93 to use HOV lanes as long as the State establishes procedures for enforcing the restrictions. FHWA will be providing more detail on this new provision in guidance to the States.
64. FTA staff mentioned "FTA sponsored listening sessions". How does one learn about and get invited to these listening sessions?
ANSWER:
We are working on a variety of implementation issues and may have additional listening sessions on selected subjects in the future. As they are organized, we will work to get the widest possible group of interested parties involved. However, we expect that as the implementation process moves forward, we will focus primarily on a process involving notices of draft documents (guidance, Proposed Rules, etc.) on specific subjects in the Federal Register, with opportunities for comment to the docket. In some cases, such as when an Advance Notice of Proposed Rulemaking is used, we may have further listening sessions focused on the questions posed in the ANPRM. These opportunities will be described in the Federal Register document asking for comment.
65. When will new guidelines be coming out in circulars?
ANSWER:
FTA is reviewing the current circulars and beginning the process of revising the current circulars and developing new circulars where necessary. Given the magnitude of the task, we expect it to take a while. We will be providing the public an opportunity to comment on the proposed draft circulars. In the interim, we will provide sufficient information to enable grantees to access program funds in FY 2006, based on statutory provisions, in the absence of extensive interpretive guidance.
66. Will there be a hold up again of distribution of funding? For instance, we just got the remaining FY 2005 funding. Will it be the end of FY2006 before grantees see funding if guidance is being developed?
ANSWER:
The delay in FY 2004 and FY 2005 funding was the result of the expiration of authorizations under TEA-21 at the end of FY 2003, with Congress extending the authorizations incrementally, sometimes month-by-month. Now that SAFETEA-LU has been enacted, once the FY 2006 Appropriations Act is enacted, the full year funding should be available under the formula programs and those earmarked by Congress. We will provide sufficient interim implementation guidance to make grants while the final guidance is being developed.
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