Section 6: Frequently Asked Questions

Q. Under what circumstances may an FTA subrecipient acquire a transit vehicle that does not comply with ADA accessibility guidelines?

A. In general, any public entity that purchases or leases a new, used, or remanufactured¹ vehicle must acquire an accessible vehicle. Specific requirements for both non-rail and rail vehicles are found in Subpart D of the Department of Transportation's (DOT) regulations implementing the ADA (49 CFR Parts 27, 37 and 38). This response will focus primarily on requirements for acquiring non-rail vehicles.

DOT regulations provide for exceptions under certain rare circumstances. These provisions vary depending on whether the entity operates a fixed-route or demand-response system, and whether it is acquiring new, used, or remanufactured vehicles.

In the case of fixed-route systems, the FTA Administrator may grant a waiver permitting a public entity to purchase or lease a new, inaccessible bus if certain conditions are met. The public entity must hold a public hearing before applying for such a waiver, and must demonstrate to the Administrator's satisfaction that specific conditions have been met. Waivers granted under this provision are conditional; they are of limited duration, with a specified termination date, and apply only to a specific procurement. All vehicles delivered after the termination date must be accessible; all inaccessible vehicles delivered under the waiver must be capable of accepting a lift; and the public entity must install lifts in those vehicles as soon as they are available.

If a public entity operating a fixed-route system purchases or leases a used vehicle, and is unable to acquire an accessible vehicle after a demonstrated good-faith effort to do so, the entity may acquire an inaccessible vehicle. At a minimum, "good-faith efforts" must include an initial solicitation specifying accessible vehicles, a nationwide search for accessible vehicles, and advertising in trade publications. Documentation of such efforts must be retained by the entity for at least three years, and made available to the public and FTA upon request.

Public operators of demand-response systems serving the general public may acquire inaccessible vehicles only if the system, when viewed in its entirety, provides a level of service to individuals with disabilities, including wheelchair users, that is equivalent to the level of service provided to non-disabled individuals.

"Equivalent service" means that when all aspects of the demand-response system are analyzed, equal opportunities for each individual with a disability to use the system must exist. Consistent with statute, the DOT ADA regulations specify certain service criteria to make this determination. FTA grantees seeking to acquire inaccessible vehicles under this provision must file a certificate with the appropriate State program office or FTA regional office that attests to the equivalency of service. Entities that are not FTA grantees must retain the certificate in their files and make it available for FTA inspection. A copy of the required certificate is found in Appendix C to Part 37. No certificate is valid for more than one year.

The waiver mechanisms established for fixed-route operators also apply to demand-response operators.

A. Requirements for paratransit as a complement to fixed-route service apply only to public entities operating fixed-route systems (bus or rail) (see Subpart F of the Department's ADA implementing regulations). There is no similar requirement for public entities operating a demand-response system for the general public. Operators of such systems must, of course, meet all other applicable requirements under these regulations, including provision of service, acquisition of vehicles, construction and/or alteration of facilities, etc., as well as regulations issued by the U.S. Department of Justice (28 CFR Part 35 or 36).

Q. Is the provision of half-price fares to senior citizens and persons with disabilities mandatory for all FTA-assisted transit services?

A. No, the provision for charging half-fare during non-peak hours to the elderly, persons with disabilities or any person presenting a Medicare card applies only to recipients who receive Section 5307 urbanized area formula program funds.

Q. How can a rural or small community transportation provider determine whether a transit vehicle manufacturer is in fact constructing its vehicles according to applicable Federal Motor Vehicle Safety Standards?

A. Vehicle manufacturers self-certify compliance with FMVSS. FTA's Pre-Award - Post Delivery Review Guidelines limit a grantee's responsibility to insure that the manufacturer has self-certified by affixing an appropriate sticker to the vehicle. Grantees are required (10 or more buses) or encouraged (fewer than 10 buses) to have in-plant inspectors during the manufacture of their vehicles. Grantees should hire inspectors familiar with FMVSS and the specification requirements.

A. Rural transportation providers in communities of under 50,000 do not have to report to the NTD no matter what type of service is provided, whether fixed route or demand response.

A new NTD is being developed and some DOTs want to be part of this new system. Working with FTA, these DOTs helped design data forms and a reporting manual for rural transit data. Seventeen states have volunteered to test the new system by providing data for the 2002 Report Year. The NTD will be a national repository for their data and will provide links back to their own websites. The addition of rural data to the NTD will provide the full complement of transit data--both urban and rural--for FTA decision-makers, as well as APTA, Congress, consultants and researchers.

A. Most projects involving the construction of a passenger facility will likely be classified as a Categorical Exclusion and will require minimal documentation. Categorical Exclusions are types of projects that normally have been found not to have significant environmental impacts. However, a few projects may require an Environmental Assessment, Historic Review or Section 4(f) Evaluation. More information on each of these requirements can be found in FTA Circular 9040.1E Pages X-6 to X-7. FTA Regional Office staff is available to assist in determining the applicability of environmental requirements and associated reviews. Grantees are encouraged to consult with FTA Regional staff early in the process.

A. For subrecipients of Section 5310 and 5311 funds, the useful life of vehicles is determined by the State Agency. This information should be contained in each State's Management Plan.

For direct recipients of Section 5309 and 5307 funds, FTA determines the useful life of vehicles.

FTA minimum normal service lives for buses and vans are:
Large, heavy-duty transit buses (approximately 35'-40', and articulated buses): at least 12 years of service or an accumulation of at least 500,000 miles.

Medium-size, heavy-duty transit buses (approximately 30'): 10 years or 350,000 miles.

Medium-size, medium-duty transit buses (approximately 30'): 7 years or 200,000 miles.

Medium-size, light-duty transit buses (approximately 25'-35'): 5 years or 150,000 miles.

Other light-duty vehicles, such as small buses and regular and specialized vans: 4 years or 100,000 miles.

A. Buy America requirements do not apply to procurements of less than $100,000.

A. There are different requirements depending on the grant program.

Under the Section 5311 program, income from human services contracts can be used to reduce the net project cost or as local match for operating assistance. In either situation the cost to provide this service contract is included in the total project cost. If income is used to reduce net project cost, then it is subtracted from the total cost and the Federal share would be up to 50% of the remaining amount. (FTA Circular 9040.1E Pages III-6 to III-7).

Under the JARC Program, revenues from service contracts are also considered an eligible match under the JARC Program. (67 Federal Register 67 April 8, 2002)

Under Section 5310, 5311 and JARC, donated, volunteer services and in-kind contributions are eligible sources of local match as long as their value can be documented and supported, and are considered an eligible cost under the specific grant program. (49 CFR parts 18 and 19)

The Section 5309 program allows in-kind contributions and the market value of real property integral to the project to be counted as cash toward local share but does not allow volunteer drivers as an eligible source of local match.

A. DOT ADA regulations require transit entities to make information concerning transportation services available through accessible formats and technology (§37.167(f)). If this type of information is provided to the public only in print, then it may be sufficient to provide copies in Braille and large-print. If information is provided to the public via additional means, then additional formats may be necessary.

For example, if information is provided via telephone, it may be necessary to provide staff with a Telecommunications Display Device (TDD) - and sufficient training to use it - or to instruct staff in the use of the telecommunications relay service. At public meetings, it may be necessary to arrange for an American Sign Language interpreter. If information is provided via Internet, using appropriate standards for accessible website design may be appropriate. In some cases, audiotapes or text files on computer disk may be appropriate accessible formats.

Ultimately, the customer is the most knowledgeable about its own requirements for alternative formats. Transit operators would be wise to consult with individuals with disabilities concerning specific needs, work with local disability community organizations concerning general issues, and provide notice that alternative formats will be made available upon request.

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Q. When is it necessary for a transit provider to be registered with the Federal Motor Carrier Safety Administration (FMCSA), and how does that agency's regulations affect the provision of local transit service across State lines?

A. A transit provider must obtain operating authority from the FMCSA in order to transport interstate passengers. Transit operators who apply for interstate service are exempt from the application fee.

FMCSA sets standards for drivers, vehicles and insurance. Transit operators are exempt from the Federal insurance requirements, but must carry as the minimum level of insurance the highest level of insurance required by the States in which they operate. Visit FMCSA web site: http://www.fmcsa.dot.gov/ or contact the local office of the FMCSA for additional information.

Q. Does the sovereign status of Native American tribes and nations exempt them from any FTA regulatory requirements, such as ADA compliance, drug and alcohol testing, or civil rights regulations?

A. Native American tribes must comply with most FTA requirements, drug and alcohol testing and most civil rights regulations. The only two exclusions are Title VII of the Civil Rights Act of 1964, as amended, (Equal Employment Opportunity) 49 U.S.C. 2000e and Title I of the Americans with Disabilities Act of 1990, as amended, (Employment) 42 U.S.C. 12101-213.

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Q. May a public agency providing fixed-route transportation fulfill its ADA complementary paratransit obligations simply by allowing fixed-route buses to deviate off route upon request by passengers with disabilities?

A. Under the DOT's ADA implementing regulations, a system that permits "user-initiated deviations from routes or schedules" is regarded as demand-responsive, not fixed-route. In other words, if buses deviate from their regular routes and/or schedules in response to passengers' requests, then the system is not a fixed-route system and there is no complementary paratransit obligation. An example provided in Appendix D to §37.3 may be particularly illustrative:

Q. May States attach terms and conditions to the use of State-administered FTA grants that are more restrictive than the FTA's own provisions, such as in terms of matching funds, eligible subrecipients, or allowable uses of FTA assistance?

A. Yes, under the 5311 rural program the State Agency is allowed flexibility and discretion in the use of these funds. The State is allowed to utilize up to 15% of its Section 5311 annual apportionment for State Administration, Planning and Technical Assistance at a 100% Federal share. However, the State may give a portion of these funds to a subrecipient for the same purpose and may impose a local match.

Eligible recipients under Sections 5311/5310 include State agencies, local public bodies, Indian tribes, private non-profit organizations and operators of public transportation services and private for-profit operators as a third party contractors for grantees or eligible subrecipients. Even though an entity is considered an eligible recipient, the State, through its solicitation/evaluation process, decides what recipients will receive funding.

Finally, the State has the discretion to classify certain operating expenses (such as maintenance) as either operating or capital activities for funding purposes. There are certain operating expenses that must be considered operating expenses, including fuel, oil, drivers' salaries and fringe benefits, dispatcher salaries and fringe benefits and licenses. In addition, the State has the discretion to treat project administrative expenses as either capital or operating assistance.

Q. Where can a transit provider find guidance if it wishes to modify the use of an existing facility constructed with FTA assistance, such as to allow a retail business or a childcare center to rent unused space in a passenger facility?

A. The transit provider should document that the space is not currently needed for transit purposes. The excess space is then available for "incidental use." FTA encourages incidental use that can raise revenue for the transit system, or enhance ridership. Federal funds cannot be used for re-modeling or fit-out of the space to accommodate non-transit use. Any incidental use should be carried out so as to maximize program income.

Guidance on incidental use of real property can be found in FTA Circular 5010.1C, Chapter II.2.b, the Joint Development Attachment to Circular 5010 as well as 49 CFR Part 18.25 Program Income.

Q. What are the exceptions to the Charter Regulation?

A. A recipient may perform incidental charter service with Federally funded equipment and facilities if one of the following exceptions applies:

• Exception 1 applies if there are no willing and able private charter operators after the recipient completes the public participation process.
• Exception 2 allows a recipient to enter into a contract with a private operator to satisfy capacity or accessible equipment needs.
• Exception 3 allows a recipient in a non-urbanized area to petition FTA to provide charter service directly if service provided by the willing and able charter operator(s) would create a hardship on the customer because (i) State regulation requires the private operator(s) to impose minimum durations which exceed the desired trip length; or (ii) the private operator(s) are located too far from the origin of the charter service.
• Exception 4, a special events exception to provide service directly to the customer, requires the grantee to petition FTA at least 90 days prior to the event if no private charter operators are capable of providing the service.
• Exception 5 applies to contracts between recipients and the following: (i) government entities or private non-profit organizations serving persons with disabilities; (ii) government entities or social service agencies under appendix A of the regulation; or (iii) government entities or State/local agencies serving persons receiving public welfare funds.
• Exception 6 allows a recipient in a non-urbanized area to execute a contract with a government entity or private non-profit organization where more than 50% of the passengers will be elderly.
• Exception 7 provides that a recipient may perform charter service directly to the customer where a formal agreement has been executed with all willing and able private operators.

The charter bus prohibitions do not apply to equipment or facilities funded under Section 5310.

The regulations recognize only two categories of vehicles: buses and vans. Trolleys, articulated buses, double-decker buses, and other types of specifically modified equipment are considered either buses or vans and are subject to the same rules as buses and vans. Any charter service that a recipient provides under any of the exceptions must be incidental charter service which does not interfere with or detract from providing mass transportation service or does not shorten the mass transportation life of the equipment or facilities being used. (Reference 49 CFR Part 604, "Charter Service")

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Q. What are the restrictions on providing school transportation services?

A. A recipient is prohibited from using FTA-funded equipment and facilities for exclusive school service, subject to three limited exceptions. It is important to note, however, that even if an exception applies, the recipient may only use locally funded vehicles and shall not use Federally assisted buses, facilities and equipment in those operations.

• Exception 1 requires that a recipient operate a school system in its urban area and also operate a separate and exclusive school bus program for that school system.
• Exception 2 requires 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.
• Exception 3 requires that a recipient be a State or local public body or agency thereof (or a direct predecessor in interest which has acquired the function of transporting schoolchildren and personnel who were engaged in school bus operations: (i) In the case of a grant involving the purchase of buses-anytime during the 12-month period immediately prior to August 13, 1973; (ii) In the case of a grant for construction or operating of facilities and equipment any time during the 12-month period immediately prior to November 26, 1974.

Federally funded vehicles can be used to provide " (Reference 49 CFR Part 605, School Bus Operations)

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Q. FTA recently revised its rules regarding contract limits. What contracts are eligible for exemption from the five-year contract limitation?

A. The five-year contract term limitation for FTA-funded contracts, including "revenue contracts," awarded by grant recipients has been rescinded. Revenue contracts are those that utilize FTA-funded real estate, equipment and facilities to generate revenue. With this rescission, grant recipients no longer need to obtain FTA approval for contract terms exceeding five years. Please note, however, that contracts for rolling stock and replacement parts are still limited to not more than five years, as required by statute. (49 United States Code Section 5326(b)) Grantees are expected to continue to be judicious in establishing and extending their contract terms. Good procurement practice dictates that grantees enter into contract terms no longer than minimally necessary to accomplish the purpose of the contract.