SAFETEA-LU Implementation Federal Register Notice

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Number 70 FR 71950
11-30-05

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Part III

Department of Transportation


Federal Transit Administration


FTA Transit Program Changes, Authorized Funding Levels and Implementation of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users; Notice

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DEPARTMENT OF TRANSPORTATION

Federal Transit Administration

FTA Transit Program Changes, Authorized Funding Levels and Implementation of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users

[Docket No. FTA-2005-23089]

AGENCY: Federal Transit Administration (FTA), DOT.

ACTION: Notice.


SUMMARY: This notice announces changes in the Federal Transit Administration (FTA) programs in accordance with SAFETEA-LU, which authorizes funds for all of the surface transportation programs of the Department of Transportation for Federal fiscal years 2005 through 2009. This notice provides preliminary implementation instructions and guidance for grants under the new and revised programs in FY 2006 and invites public comment. The notice also includes tables of unobligated (or carryover) amounts for earmarks from prior years under the discretionary programs, and tables that list discretionary program earmarks authorized under SAFETEA-LU.

DATES: Comments on the content of this notice will be received until December 30, 2005. Late filed comments will be considered to the extent practicable.

ADDRESSES: You may submit comments [identified by DOT DMS Docket Number FTA-2005-23089] by any of the following methods:

  1. Web Site: http://regulations.gov/. Follow the instructions for submitting comments on the DOT electronic docket site. Fax: 202-493-2251.
  2. Mail: Docket Management Facility; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, PL-401, Washington, DC 20590-0001.
  3. Hand Delivery: Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, 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-2005-23089). You should submit two copies of your comments if you submit them by mail. If you wish to receive confirmation that FTA received your comments, you must include a self-addressed stamped postcard. Note that all comments received will be posted without change to the Department's Docket Management System (DMS) Web site located at http://regulations.gov/. This means that if your comment includes any personal identifying information, such information will be made available to users of DMS.

FOR FURTHER INFORMATION CONTACT: For general information about this notice contact Mary Martha Churchman, Director, Office of Resource Management and State Programs, (202) 366-2053. Please contact the appropriate FTA regional office, from the list in Appendix A, for grantee specific requests for information or technical assistance.

SUPPLEMENTARY INFORMATION:

Table of Contents

  1. Overview
  2. FY 2006 Funding for FTA Programs
    1. Authorized Funding for FY 2006
    2. Status of FY 2006 Funding
    3. Project Management Oversight Takedown
  3. SAFETEA-LU: FY 2006-2009 Authorized Funding Levels and Project Authorizations
  4. SAFETEA-LU: Highlights of Cross-Cutting Changes
    1. Definitional Changes
      1. Mobility Management
      2. Security Planning, Training, and Drills
      3. Debt Service Reserve
      4. Intercity Bus and Intercity Rail
      5. Definition of Public Transportation
    2. Cross-cutting Programmatic Requirements and Changes
      1. State Infrastructure Bank
      2. Coordination
      3. Public Participation Planning Requirement
      4. Public Hearings
      5. Labor Protection
      6. Buy America
      7. Procurement
      8. Pre-award/Post-Delivery Reviews
      9. Charter Service and School Bus
      10. Revenue Bonds as Local Match
      11. Government's Share of Cost of Equipment and Facilities for ADA and Clean Air Act Compliance
  5. SAFETEA-LU: Summary of New Programs and Formulas
    1. New Freedom (49 U.S.C. 5317)
    2. Alternative Transportation in the Parks and Public Lands (49 U.S.C. 5320)
    3. Small Starts (Component of the Section 5309 New Starts Program)
    4. Alternative Analysis (49 U.S.C. 5339)
    5. Public Transportation on Indian Reservations (49 U.S.C. 5311(c)(1))
    6. Growing States and High Density States Formula Factors (49 U.S.C. 5340)
  6. Program Specific Information and Requests for Comments
    1. Metropolitan Planning Program (49 U.S.C. 5303)
    2. Statewide Planning and Research Program (49 U.S.C. 5304)
    3. Urbanized Area Formula Program (49 U.S.C. 5307)
    4. Clean Fuels Grant Program (49 U.S.C. 5308)
    5. Capital Investment Program (49 U.S.C. 5309)--Fixed Guideway Modernization
    6. Capital Investment Program (49 U.S.C. 5309)--Bus and Bus-Related Facilities
    7. Capital Investment Program (49 U.S.C. 5309)--New Starts
    8. Special Needs of Elderly Individuals and Individuals with Disabilities Program (49 U.S.C. 5310)
    9. Nonurbanized Area Formula Program (49 U.S.C. 5311)
    10. Rural Transportation Assistance Program (49 U.S.C. 5311(b)(2))
    11. Public Transportation on Indian Reservations Program (49 U.S.C. 5311(c)(1))
    12. National Research Program (49 U.S.C. 5314)
    13. Job Access and Reverse Commute Program (49 U.S.C. 5316)
    14. New Freedom Program (49 U.S.C. 5317)
    15. Alternative Transportation in the Parks and Public Lands Program (49 U.S.C. 5320)
    16. Alternative Analysis Program (49 U.S.C. 5339)
    17. Growing States and High Density States Formula Factors (49 U.S.C. 5340)
    18. Over-the-Road Bus Accessibility Program (Pub. L. 105-85, Section 3038)
  7. FTA National Planning Emphasis Areas
  8. FTA Policy and Procedures for FY 2006 Grants
    1. Automatic Pre-Award Authority To Incur Project Costs
    2. Letter of No Prejudice (LONP) Policy
    3. FTA FY 2006 Annual List of Certifications and Assurances
    4. FHWA Funds Used for Transit Purposes
    5. Consolidated Planning Grants
    6. Grant Application Procedures
  • Tables
    1. SAFETEA-LU Authorized Programs and Funding Levels
    2. SAFETEA-LU Authorized Section 5309 New Starts Projects
    3. SAFETEA-LU Authorized Section 5339 Alternative Analysis Projects
    4. SAFETEA-LU Authorized Section 5309 Bus and Bus-Related Facilities Projects
    5. SAFETEA-LU Authorized Section 5308 Clean Fuels Projects
    6. Prior Year Unobligated Section 5309 Bus and Bus-Related Facilities Allocations
    7. Prior Year Unobligated Section 5309 New Starts Allocations
    8. SAFETEA-LU Authorized Section 5314 National Research Program Projects
    9. Prior Year Unobligated Job Access and Reverse Commute Allocations
  • Appendices
    • Appendix A--FTA Regional Offices
    • Appendix B--Specific Questions and Issues for Comment

I. Overview

This document contains important information about new FTA programs authorized by the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users, (SAFETEA-LU) (Pub. L. 109-059), signed into law by President Bush on August 10, 2005, and changes to programs reauthorized by that legislation. It also contains information on how FTA plans to administer the transit programs

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discussed in this document, in fiscal year (FY) 2006. For each FTA program included, we have provided information on the SAFETEA-LU authorized funding levels for fiscal years 2006-2009, the basis for apportionment or allocation for funds, requirements specific to the program, period of availability of funds, and other program information. The document also includes a section that introduces planning emphasis areas for FY 2006. A separate section of the document provides information on pre-award authority and other requirements and guidance applicable to FTA program administration. Finally, the notice includes tables that show unobligated or carryover funding available, in FY 2006, from prior years under certain discretionary programs, and tables that list authorized project earmarks under SAFTEA-LU.

Information in this document includes references to the existing FTA program guidance circulars. While some information in the circulars has been superseded by new provisions in SAFETEA-LU, the circulars remain a resource for program guidance in most areas. FTA intends to revise the circulars, with an opportunity for public comment.

To supplement the guidance provided in this document FTA is preparing answers to frequently asked questions (FAQs), on SAFETEA-LU changes and impacts, from its grantees, stakeholders, and other interested parties. These FAQs will be posted on the FTA Web site at http://www.fta.dot.gov/ when they become available.

Throughout the document we have included specific questions on which we seek comment, and we invite your comments to the docket on any information provided in this notice. A list of the specific questions or issues can be found in Appendix B.

II. FY 2006 Funding for FTA Programs

A. Authorized Funding for FY 2006

SAFETEA-LU provides a combination of trust and general funds that total $8.6 billion for FTA programs for FY 2006. Table 1 of this document shows the authorized funding for the FTA programs for the fiscal years 2006-2009. This notice provides a narrative explanation of the funding levels and other factors affecting the apportionments and allocations for each program.

B. Status of FY 2006 Funding

When the FY 2006 appropriations bill is passed and enacted into law, FTA will publish another notice that will include a table for each program that contains the apportionments or allocations, based on the program funding level in the FY 2006 appropriations act. At the time this notice was prepared the agency was operating under a Continuing Resolution and only a small fraction of the FY 2006 funds authorized in SAFETEA-LU was available for FTA programs and administrative expenses. No FY 2006 program funds have been apportioned at this time. Congress recently took action on the FY 2006 Appropriations Act and we will publish the FY 2006 apportionments and allocations shortly.

C. Project Management Oversight Takedown

FTA draws money from funds appropriated to certain FTA programs for program oversight activities conducted by the agency. The funds are used to provide necessary oversight activities, including oversight of the construction of any major project under these statutory programs; to conduct safety and security, civil rights, procurement, management and financial reviews and audits; and to provide technical assistance to correct deficiencies identified in compliance reviews and audits.

49 U.S.C. 5327 authorizes the takedown of funds from FTA programs for project management oversight. SAFETEA-LU increased the amount that may be set-aide for such activities above the levels established under TEA-21 and identified additional programs to which the oversight takedown applies. SAFETEA-LU provides oversight takedowns at the following levels: 0.5 percent of Planning funds, 0.75 percent of Urbanized Area Formula funds, 1 percent of Capital Investment funds, 0.5 percent of Special Needs of Elderly Individuals and Individuals with Disabilities formula funds, 0.5 percent of Nonurbanized Area Formula funds, and 0.5 percent of Alternative Transportation in the Parks and Public Lands funds. Language in section 5327 also specifies the addition of ``safety and security management'' to the list of project management plan requirements.

III. SAFETEA-LU: FY 2006-2009 Authorized Funding Levels and Project Authorizations

SAFETEA-LU provides a combination of trust and general fund authorizations that total $45.3 billion for public transportation for fiscal years 2005-2009 ($52.6 billion over the six year period 2004-
2009). Just over 80 percent is derived from the Mass Transit Account, with only New Starts, Research and FTA Administrative funding coming from the General Fund. All funds, including the General Fund portion, are guaranteed, which means that the guaranteed annual levels are already ``paid for'' under Congressional budgetary rules. This assures that in each year's appropriations process the specified amount of authorized funding will be available each year for transit programs. See Table 1 for the guaranteed funding levels by program.

Previously, under TEA-21, all the FTA programs were funded with both Mass Transit Account and General Funds. Because of this change in the structure of FTA's accounts, except for New Starts and Research program grants, FTA will not be able to combine FY 2006 funds in the same grant with funds appropriated in prior years. See section VIII F below for grant application procedures.

SAFETEA-LU includes 405 New Starts project designations for fiscal years 2006-2009, many of which are listed more than once. The total funding authorized for these projects is $5.49 billion. Thirty-one (31) projects are authorized for Full Funding Grant Agreements (FFGAs); 38 projects are authorized for Final Design (FD) and Construction, and 264 projects are authorized for Preliminary Engineering (PE). Dollar amounts are specified by fiscal year for each FFGA project. No funding amounts are specified for the FD and construction and PE projects.

Fifty-two New Starts project designations listed have a total amount specified but this amount is not identified with any particular fiscal year. In addition, 18 New Starts projects for Alternative Analysis under section 5339 are designated and amounts authorized for fiscal years 2006 and 2007 specified. The Alaska and Hawaii Ferry Boat and Denali Commission projects are also authorized. All New Starts earmarks are listed in Table 2 and Table 3 by State, including the dollar amount if specified.

Also authorized are project specific allocations for 646 Bus and Bus-Related Facilities projects totaling $1,819,662,341 for fiscal years 2006-2009. These projects and amounts are displayed in Table 4.

Under the Clean Fuels program, 16 projects totaling $78,385,000 are earmarked for funding for FY 2006-2009. These projects and amounts are displayed in Table 5.

It should be noted that projects earmarked in SAFETEA-LU are subject to Congressional actions in later appropriations bills and funding is not available for immediate obligation. Estimates of formula program funding

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levels for fiscal years 2006-2009, by State and urbanized area (UZA), are available on the FTA Web site. These numbers are for planning purposes only as they will be revised when each year's appropriation bill is enacted but may be used for the purpose of programming metropolitan transportation improvement programs (TIPs) and statewide transportation improvement programs (STIPs).

In the estimates of formula funding for UZAs, for the JARC and New Freedom programs, FTA included the amount of funding attributable to each UZA less than 200,000 in population (small UZA) low income individuals and individuals with disabilities, respectively. These amounts were provided, for information purposes only. Under these programs, funds for the UZAs under 200,000 in population will be apportioned to the state for competitive selection of projects. Similarly, we estimated the amount of funding that might go to each State under the Public Transportation on Indian Reservations Program (49 U.S.C. 5311(c)(1) also referred to as the Tribal Transit Program in this document), based on tribal population. But these funds will not be apportioned to the States and the process for apportioning them among the Tribes has not yet been determined.

IV. SAFETEA-LU: Highlights of Cross-Cutting Changes

A. Definitional Changes

1. Mobility Management

SAFETEA-LU added ``mobility management'' to the list of capital projects at 5302(a)(1)(L). This allows ``short-range planning and management activities and projects for improving coordination among public transportation and other transportation service providers carried out by a recipient or subrecipient'' to be funded as a capital project. The definition excludes the actual costs of operating public transportation services, but allows the costs of planning and coordination with human service transportation to be treated as capital rather than operating costs.

2. Security Planning, Training, and Drills

Four new eligible capital activities were added at 5302(a)(1)(J). These include projects ``to refine and develop security and emergency response plans, projects aimed at detecting chemical and biological agents in public transportation, the conduct of emergency response drills with public transportation agencies and local first response agencies, and security training for public transportation employees.'' Expenses related to transit operations, other than those incurred in conducting emergency response drills or security training, are excluded from this definition and will continue to be eligible only as operating in those areas eligible to use FTA funds for operating assistance.

3. Debt Service Reserve

SAFETEA-LU allows recipients to be reimbursed from section 5309 funds for deposits of bond proceeds in a debt service reserve. The Act also allows up to ten recipients to be reimbursed from section 5307 funds for bond proceeds deposited in a debt service reserve established with a bondholders' trustee. These provisions will have the effect of reducing grantees' out of pocket bond issuance costs due to the reimbursement for the cost of the debt service reserve. The new capital definition of debt service reserve is found at 5302(a)(1)(K) and the limitations on its use are at sections 5323(e)(3) and (4).

4. Intercity Bus and Intercity Rail

The definition of an eligible joint development capital project in section 5302(A)(1)(G) has been expanded to include ``construction, renovation, and improvement of intercity bus and intercity rail stations and terminals.'' Further, the limitation that made ``commercial revenue-producing facilities'' ineligible for FTA assistance has been lifted with respect to intercity bus stations or terminals. Intercity bus stations and terminals are not required to provide a fair share of revenue for public transportation that will be used for public transportation.

The result of these changes is that FTA funds can now be used for all aspects of intercity bus and rail facilities in facilities (such as intermodal terminals) which meet the criteria in section 5302(a)(1)(G) for joint development projects (physical and functional relationship to public transportation). Further, $35 million per year is set aside in the section 5309 Bus and Bus-Related Facilities program for intermodal terminals, including the intercity bus portions of those terminals.

5. Definition of Public Transportation

Throughout SAFETEA-LU, the term public transportation is used wherever the FTA statute previously referred to mass transit or mass transportation. The definition of public transportation at 5302(a)(10) was also modified to specifically exclude intercity bus transportation. This change does not affect the eligibility of intercity bus service under the rural program (section 5311) or the over-the-road bus accessibility program (TEA-21, section 3038). The definition now also specifically excludes intercity passenger rail transportation provided by AMTRAK. The intercity bus and intercity rail portion of intermodal terminals, however, is an eligible capital cost under 49 U.S.C. 5302(a)(1)(G).

B. Cross-cutting Programmatic Requirements and Changes

1. State Infrastructure Bank

SAFETEA-LU establishes a new State Infrastructure Bank (SIB) program under which all States, Puerto Rico, the District of Columbia, American Samoa, Guam, the Virgin Islands, and the Commonwealth of the Northern Mariana Islands are authorized to enter into cooperative agreements with the Secretary of Transportation to establish financial entities that provide various types of transportation infrastructure credit assistance for fiscal years 2005-2009. The new program is a continuation and expansion of similar programs created by the National Highway System (NHS) Act in 1995 and the TEA-21 legislation of 1998. It gives States the capacity to increase the efficiency of their transportation investment and significantly leverage Federal resources by attracting non-Federal public and private investment. The program provides greater flexibility to the States by allowing other types of project assistance in addition to grant assistance.

2. Coordination

Under three FTA formula programs [the Special Needs of Elderly Individuals and Individuals with Disabilities Program (section 5310), Job Access and Reverse Commute (section 5316), and New Freedom (section 5317)], there is a requirement that the designated recipient competitively select projects and that the projects must be derived from a locally developed coordinated public transit/human service transportation plan. Public transit operators, including those funded under both the urbanized and non-urbanized formula programs (sections 5307 and 5311) are expected to be participants in the local planning process for coordinated public transit/human service transportation. See the specific programs below for more information about the planning requirements as it relates to the three programs. See also the metropolitan planning public participation requirement below.

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3. Public Participation Planning Requirement

Metropolitan Planning Organizations (MPOs) must develop and utilize a ``participation plan'' that provides reasonable opportunities for the interested parties to comment on the content of the metropolitan transportation plan and metropolitan TIP. This requirement is intended to afford parties who participate in the metropolitan planning process a specific opportunity to comment on the plan prior to its approval, including governmental agencies and nonprofit organizations that receive Federal assistance from a source other than the Department of Transportation (DOT) to provide non-emergency transportation services and recipients of assistance under section 204 of Title 23 U.S.C. The participation plan must be in place prior to MPO adoption of transportation plans and TIPs addressing SAFETEA-LU provisions.

4. Public Hearings

The public hearing requirement in 49 U.S.C. 5323(b) for capital projects was changed by SAFETEA-LU. Formerly, an opportunity for a public hearing was required on a section 5309 grant application if the grant would substantially affect the community or its mass transportation service. Many of the notices published under this requirement did not ultimately result in a hearing being held.

SAFETEA-LU associates more clearly the public involvement and hearing requirements for capital projects with the environmental review required by the National Environmental Policy Act (NEPA) and its implementing regulations. It also broadens the requirement to apply to all capital projects (as defined in section 5302). Now, the grant applicant must provide an adequate opportunity for public review and comment on a capital project, and, after providing notice, must hold a public hearing on the project if the project affects significant economic, social, or environmental interests. These requirements will be satisfied through compliance with the NEPA requirements for a public scoping process, public review and comment on NEPA documents, and a public hearing on every draft environmental impact statement (EIS). FTA will also require a public hearing on environmental assessments (EAs) that have a high probability of being elevated to EISs.

Section 5323(b) must be read in concert with section 5324(b) which states that FTA must review the public comments and hearing transcript to ascertain that an adequate opportunity to present views was given to all parties having a significant economic, social, or environmental interest in the project, and that FTA must make a written finding to this effect.

5. Labor Protection

SAFETEA-LU codified in 5333(b) streamlined labor protection arrangements already used by the Department of Labor (DOL) in certifying FTA grants for purchase of like-kind equipment or facilities or non-material grant amendments. It also codified existing practice when a contractor is changed through competitive bidding. In section 5311, the use of a special warranty is written into the law. Awards under two new programs, New Freedom and Alternative Transportation in Parks and Public Lands, will not be required to be certified by DOL.

6. Buy America

The Buy America stipulation is intended to ensure that Federal grants stimulate domestic economic activity. FTA funds must be used for goods that must be produced or manufactured in the United States or with specific products, and have a defined percent of domestic content. Four changes from the previous law are that SAFETEA-LU:

  • Requires the Secretary of Transportation to issue a written justification for public interest waivers on Buy America requirements. (Under the law, he may waive the Buy America requirements if they are deemed inconsistent with the public interest). The Secretary must publish the written justification in the Federal Register and provide the public with a reasonable period of time for notice and comment.
  • Clarifies that a party adversely affected by a FTA decision under the Buy America provisions has the right to seek administrative review.
  • Repeals the general waiver of sub-sections (b) and (c) of Appendix A of section 661.7.
  • Requires a rulemaking within 180 days clarifying or defining the following Buy America requirements:
    1. Microprocessors; Buy America requirements have been waived for microprocessors since few are manufactured in the United States. The Secretary is directed to apply the waiver to a device that is solely for the purpose of processing and storing data and not extended to a product containing the microprocessor.
    2. Defining the term ``end product'' for non-rolling stock. Does the end product serve a purpose by itself or with other end products on an interoperative basis? A product that does not work with products of other manufacturers is part of that manufacturers system that is the end product. A list of systems and end products will be developed.
    3. Defining the term ``negotiated procurement'' and determine Buy America compliance on the basis of the certification with the final offer.
    4. Defining the term ``contractor''.
    5. Clarifying that a grant recipient may request a non-availability waiver after the contract award if the contractor has made a certification of compliance with the requirements in good faith. The contractor must have certified that it can meet the Buy America requirements before being awarded a contract. If the contractor later finds that parts are not available to meet the requirement, the grantee may now request a Buy America waiver.
7. Procurement

SAFETEA-LU recodified FTA's procurement requirements in section 5325 of Title 49 U.S.C. Section 5325(a) establishes full and open competition as the basic requirement for FTA-funded third party contracts. Section 5325(b), which covers architectural, engineering, and design contracts, has been modified to match similar language in Title 23 U.S.C., on reciprocity of audited indirect cost rates. Section 5325(c) on use of other-than-low-bid procurement has been reenacted. Language on Turnkey Contracting, formerly in section 5326, now appears as section 5325(d), and is re-titled ``Design-Build'', reflecting more up-to-date terminology. Provisions formerly in section 5326 governing rolling stock procurements now appear in sections 5325(e) and (f). Section 5325(g) now allows access by DOT or the Government Accountability Office (GAO) to any contract-related record, not just those in sole-source procurements. Section 5325(h) continues the prohibition on exclusionary or discriminatory procurements. A new section 5325(i) prohibits application of State laws requiring bus purchases to go through in-State bus dealers from applying to projects assisted under the FTA program. Finally, section 5325(j) codifies in law the requirement that contracts be awarded only to ``responsible'' contractors. Grantees are required to assess the integrity of the contractor, compliance with public policy, the contractor's financial and technical resources, and the contractors past performance, particularly as reported in the Contractor Performance Assessment Report required under section 5309(l)(2).

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8. Pre-Award/Post-Delivery Reviews

Under the current Buy America provisions, there is a requirement for a resident factory inspector for rolling stock procurements of greater than 10 buses. SAFETEA-LU eliminates the requirement for a resident factory inspector for rolling stock procurements of 20 vehicles or less for use in rural (other than urbanized) areas, or UZAs of 200,000 population or less.

9. Charter Service and School Bus

SAFETEA-LU section 3023(d) amended 49 U.S.C., section 5323(d)(2) and provided new remedies for violations of charter service. The amended provision states that the Secretary shall bar a recipient or an operator from receiving Federal transit assistance in an amount the Secretary considers appropriate if the Secretary finds a pattern of violations of the agreement. The previous provision stated that the Secretary could bar a recipient from receiving further assistance when the Secretary found a continuing pattern of violations of the agreement. The new provision allows for more flexibility. Under the prior law the Secretary could totally bar a recipient from receiving further financial assistance, but this penalty was so harsh that it was only rarely invoked. Under SAFETEA-LU the Secretary can determine a penalty less than a complete bar of financial assistance; the Secretary shall bar an operator from receiving assistance in an amount the Secretary considers appropriate.

In addition, the Conference Report for SAFETEA-LU stated that the conferees directed FTA to initiate a negotiated rulemaking seeking public comment on the charter service regulation implementing 49 U.S.C., 5323(d) and to consider the following issues: (1) Whether 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; (2) how can the administration and enforcement of charter bus provisions be better communicated to the public, including use of internet technology; (3) improve the enforcement of violations; and (4) improve the complaint and administrative appeals process. FTA has initiated the negotiated rulemaking process.

SAFETEA-LU section 3023(f) amended 49 U.S.C., 5323(f) and provided new remedies for violations of the school bus transportation provision. The amended provision states that if the Secretary finds a violation, the Secretary shall bar a recipient or operator from receiving Federal transit assistance in an amount the Secretary considers appropriate. The previous provision stated that in the case of a violation, an applicant could not receive other mass transportation financial assistance. The new provision allows for more flexibility. Under the prior law the penalty was so severe that it was only rarely invoked. Under SAFETEA-LU the Secretary can determine a penalty less than a complete bar of financial assistance; the Secretary shall bar an operator from receiving assistance in an amount the Secretary considers appropriate.

10. Revenue Bonds as Local Match

Originally allowed in TEA-21, revenue bonds may now be used as local match, provided that the grantee maintains a greater level of local transit investment in the subsequent three years (as demonstrated in the TIP) than as in the current and prior two years. This provision in 5323(e) allows bond proceeds, secured by the revenues of a transit capital project, to be used as local match for that project.

11. Government's Share of Cost of Equipment and Facilities for ADA and Clean Air Act Compliance

The provision allowing a 90 percent Federal share for the incremental cost of compliance with the Americans with Disabilities Act (ADA) or Clean Air Act (CAA) was expanded to include vehicle-related facilities as well as equipment at section 5323(i). Under the provision allowing the Secretary ``to determine through practicable administrative procedures, the costs of such equipment or facilities attributable to compliance with those Acts'', FTA previously computed an 83 percent composite match for vehicle-related equipment. Given changes in technology, FTA may revisit that calculation, but for the time being, grantees may use the 83 percent share. FTA seeks public comment on the continued use of the 83 percent share. Also, the administratively determined 83 percent Federal share does not apply to facilities, for which the costs are more variable. Grantees may apply for the 90 percent share of the actual incremental costs of vehicle-
related facility improvements related to ADA or CAA compliance, but FTA requests that grantees provide supporting documentation for that request. Until FTA develops guidance, the eligibility of facility related costs at the higher share will be reviewed on a case-by-case basis as part of the grant application process.

V. SAFETEA-LU: Summary of New Programs and Formulas

A. New Freedom (49 U.S.C. 5317)

The New Freedom program provides formula funding for new public transportation services and public transportation alternatives beyond those required by the Americans with Disabilities Act of 1990 that assist individuals with disabilities with transportation, including transportation to and from jobs and employment support services. Details are provided in section VI N below.

B. Alternative Transportation in the Parks and Public Lands (49 U.S.C. 5320)

SAFETEA-LU provides $22 million annually for alternative transportation projects to enhance the protection of national parks and public lands and increase the enjoyment of those visiting the parks and public lands by ensuring access to all, including persons with disabilities, improving conservation and park and public land opportunities in urban areas through partnering with State and local governments, and improving park and public land transportation infrastructure. The program is to be implemented by FTA in consultation with the Department of the Interior and other Federal land management agencies.

The Secretary of Transportation will develop cooperative arrangements with the Secretary of the Interior that provide: (1) Technical assistance; (2) interagency and multidisciplinary teams to develop alternative transportation policy, procedures, and coordination; and, (3) procedures and criteria relating to the planning, selection, and funding of qualified projects and the implementation and oversight of selected projects. The Secretary of the Interior, after consultation with and in cooperation with the Secretary of Transportation, will determine the final selection and funding levels of an annual program of qualified projects.

C. Small Starts (Component of the Section 5309 New Starts Program)

SAFETEA-LU specifies a new category of projects to be funded separately out of the section 5309 New Starts program. This new category encompasses smaller scale projects, referred to as Small Starts, and has been authorized at a funding level of $200 million per year, beginning in FY 2007.

Projects requesting less than $75 million in section 5309 New Starts funds with a total project cost less than $250 million will be eligible to receive funds under the new Small Starts provision. SAFETEA-LU lays out a

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simplified evaluation and rating process that FTA will use to support funding decisions for Small Starts projects. The statute specifies both cost-based and project-definition-based eligibility requirements. The definition of fixed guideway capital project to be applied in Small Starts has been expanded to include substantial corridor bus projects that either operate in a separate right of way during peak hours or contain significant investment in corridor-based bus improvements. Small Starts projects must also be the result of planning and alternatives analysis.

The transit program statute provides for an evaluation process for proposed Small Starts projects that include a subset of the evaluation criteria specified for traditional New Starts projects. The Small Starts evaluation criteria in the statute include:

  • Transit supportive land use,
  • Cost-effectiveness,
  • Reliability of cost and ridership estimates,
  • Effect on economic development, and
  • Other factors that the Secretary determines are appropriate.

Currently, projects requesting less than $25 million in New Starts funding are exempt from the annual evaluation and rating process. Under the new statute, this exemption no longer applies once a regulation is issued for Small Starts. All eligible projects that meet the aforementioned Small Starts cost criterion will be rated and evaluated according to the Small Starts process. SAFETEA-LU also calls for a simplified project development process to be applied to Small Starts projects. SAFETEA-LU requires that FTA issue regulations establishing an evaluation and rating process for the Small Starts process. The Small Starts Advance Notice of Proposed Rulemaking will be issued soon.

D. Alternatives Analysis (49 U.S.C. 5339)

Alternatives Analysis is no longer included in the eight percent of the section 5309 New Starts program that can be used for projects prior to FD and Construction. Instead, $25 million annually is provided for Alternatives Analysis grants under section 5339. As before, Metropolitan Planning funds and Urbanized Area Formula funds can also be used to support alternatives analysis. The procedures grantees should use to apply for section 5339 funds are referred to in section VI P below.

E. Public Transportation on Indian Reservations (49 U.S.C. 5311(c)(1))

SAFETEA-LU creates a new Tribal Transit program as a takedown under the section 5311 program. Forty-five million dollars is authorized for fiscal years 2006-2009, growing from $8 million annually to $15 million. The funds are to be apportioned to the Tribes, not to the States, for capital and operating assistance for rural transit and rural intercity bus service. FTA will develop procedures for the Tribal Transit program in consultation with tribal leaders and other interested stakeholders.

In addition to funding under the Tribal Transit program, States must continue to include the Tribes in the equitable distribution of the section 5311 funds apportioned to the States. Indian Tribes are established as direct recipients under section 5311 for funding from the States' apportionment as well as from the new Tribal Transit program.

See section VI K for additional information and for specific questions on which FTA seeks comments from Tribes and other interested stakeholders.

F. Growing States and High Density States Formula Factors (49 U.S.C. 5340)

SAFETEA-LU establishes new Growing States and High Density States formula factors to distribute funds to the section 5307 and section 5311 programs. One-half of the funds are made available under the Growing States factors and are apportioned by a formula based on State population forecasts for 15 years beyond the most recent Census. Amounts apportioned for each State are then distributed between UZAs and nonurbanzied areas based on the ratio of urbanized/nonurbanzied 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 UZAs within those States. Additional details on the Growing States and High Density States formula and factors are discussed in section VI Q below.

VI. Program Specific Information and Requests for Comments

A. Metropolitan Planning Program (49 U.S.C. 5303)

Section 5303 authorizes a cooperative, continuous, and comprehensive planning program for transportation investment decision-
making at the metropolitan area level. State Departments of Transportation and MPOs may receive funds for planning projects that support the economic vitality of the metropolitan area, especially by enabling global competitiveness, productivity, and efficiency; increasing the safety and security of the transportation system for motorized and non-motorized users; increasing the accessibility and mobility options available to people and for freight; protecting and enhancing the environment, promoting energy conservation, and improving quality of life; enhancing the integration and connectivity of the transportation system, across and between modes, for people and freight; promoting efficient system management and operation; and emphasizing the preservation of the existing transportation system.

1. Authorized Amounts

SAFETEA-LU authorizes the following amounts to carryout section 5305 Planning programs for fiscal years 2006-2009:
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As specified in law, 82.72 percent of the amounts authorized for section 5305 are allocated to the Metropolitan Planning program. The table below shows the amount of funding authorized under section 5305 to be allocated to the Metropolitan Planning program.
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2. Basis for Formula Apportionment

FTA allocates Metropolitan Planning funds to the States according to a statutory formula. Eighty percent of the funds are distributed to the States as a basic allocation based on each State's UZA population, based on the most recent Census. The remaining 20 percent is provided to the States as a supplemental allocation based on an FTA administrative formula to address planning needs in the larger, more complex UZAs. The amount published for each State is a combined total of both the basic and supplemental allocation.

3. Requirements

The State allocates Metropolitan Planning funds to MPOs in UZAs or portions thereof to provide funds for projects included in an annual work program (the Unified Planning Work Program, or UPWP) that includes both highway and transit planning projects. Each State has either reaffirmed or developed, in consultation with their MPOs, a new allocation formula, as a result of the 2000 Census. The State allocation formula may be changed annually, but any change requires approval by the FTA regional office before grant approval. Program guidance for the Metropolitan Planning Program is found in FTA Circular C8100.1B, Program Guidance and Application Instructions for Metropolitan Planning Program Grants, dated October 25, 1996. FTA is in the process of updating this circular to incorporate changes resulting from language in SAFETEA-LU.

4. Period of Availability

The funds apportioned under the Metropolitan Planning program will remain available to be obligated by FTA to recipients for four fiscal years--which includes the year of apportionment plus three additional years. Any apportioned funds that remain unobligated at the end of this period will revert to FTA for reapportionment under the program.

5. Other Program Information

Sections VII and VIII F of this document provide guidance and information specific to FTA planning programs, including the Metropolitan Planning program. Please refer to those sections for additional information relevant to this program.

B. Statewide Planning and Research Program (49 U.S.C. 5304)

This program provides financial assistance to States for Statewide planning and other technical assistance activities (including supplementing the technical assistance program provided through the Metropolitan Planning program), planning support for nonurbanized areas, research, development and demonstration projects, fellowships for training in the public transportation field, university research, and human resource development.

1. Authorized Amounts

SAFETA-LU authorizes the following amounts to carryout section 5305 Planning programs for fiscal years 2006-2009:
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As specified in law, 17.28 percent of the amounts authorized for section 5305 are allocated to the Statewide Planning and Research program. The table below shows the amount of funding authorized under section 5305 to be allocated to the Statewide Planning and Research program.
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2. Basis for Apportionment Formula

Funds are apportioned to States by a statutory formula that is based on information received from the latest decennial census, and the State's UZA population as compared to the UZA population of all States. However, a State must receive at least 0.5 percent of the amount apportioned under this program.

3. Requirements

Funds are provided to States for statewide planning and research programs. These funds may be used for a variety of purposes such as planning, technical studies and assistance, demonstrations, management training, and cooperative research. In addition, a State may authorize a portion of these funds to be used to supplement Metropolitan Planning funds allocated by the State to its UZAs, as the State deems appropriate. Program guidance for the Statewide Planning and Research program is found in FTA Circular C8200.1, Program Guidance and Application Instructions for State Planning and Research Program Grants, dated December 27, 2001. FTA is in the process of updating this circular to incorporate changes resulting from language in SAFETEA-LU.

4. Period of Availability

The funds apportioned under the Statewide Planning and Research program will remain available to be obligated by FTA to recipients for four fiscal years'which include the year of apportionment plus three additional fiscal years. Any apportioned funds that remain unobligated at the end of this period will revert to FTA for reapportionment under the program.

C. Urbanized Area Formula Program (49 U.S.C. 5307)

Section 5307 authorizes Federal capital and operating assistance for transit in UZAs. A UZA is an area with a population of 50,000 or more that has been defined and designated as such in the most recent decennial census by the U.S. Census Bureau. The Urbanized Area Formula Program also supports planning, in addition to that funded under the Metropolitan Planning program described above. Funding is apportioned directly to each UZA with a population of 200,000 or more, and to the State Governors for UZAs with populations between 50,000 and 200,000. Generally, operating assistance is not an eligible expense for UZAs with populations of 200,000 or more. However, there are several exceptions to this restriction. The exceptions are described in section 2(e) below.

[[Page 71957]]

1. Authorized Amounts

SAFETEA-LU authorizes the following amounts under section 5307 to provide financial assistance to UZAs for fiscal years 2006-2009:
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SAFETEA-LU directs that there be a one percent takedown from the funds made available under section 5307. This takedown amount will be for apportionment under the new Small Transit Intensive Cities (STIC) formula.
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Under the formula for STIC, funds are apportioned to UZAs with a population less than 200,000 that meet or exceed the average level of service for all UZAs with populations between 200,000 and 1,000,000.
In addition to the funds made available to UZAs under section 5307, approximately 84 percent of the funds authorized for the new section 5340 Growing States and High Density States formula factors will be apportioned to UZAs. The portion of authorized section 5340 funds allocable to UZAs, based on the section 5340 formulas, is shown in the following table.
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Language in the SAFETEA-LU conference report indicates that FTA is to show a single apportionment amount for 5307, STIC and 5340. Accordingly, the apportionment amount for a UZA that will be displayed in the Urbanized Area Formula apportionment table to be published in the FTA FY 2006 apportionments and allocations Notice, after FY 2006 funding is appropriated, will include regular 5307 funds (that amount remaining after the one percent takedown for STIC), STIC funds, and Growing States and High Density States funding for the area. Although a single UZA amount will be shown to comply with conference report language (as noted above), separate formula calculations will be used to generate the respective apportionment amounts for the 5307, STIC and 5340.

2. Requirements

Program guidance for the Urbanized Area Formula Program is presently found in FTA Circular C9030.1C, Urbanized Area Formula Program: Grant Application Instructions, dated October 1, 1998, and supplemented by additional information or changes provided in this document. FTA is in the process of updating this circular to incorporate changes resulting from language in SAFETEA-LU. Several important program requirements are highlighted below.

(a) Urbanized Area Formula Apportionments to Governors

For small UZAs, the funds are apportioned to the Governor of each State for distribution. A single total Governor apportionment amount for the Urbanized Area Formula, STIC, and Growing States and High Density States will be shown in the Urbanized Area Formula Apportionment table to be published in the FTA FY 2006 apportionments and allocations Notice, after FY 2006 funding is appropriated. The table will also show the apportionment amount attributable to each small UZA within the State. The Governor may determine the suballocation of funds among the small UZAs except that funds attributed to a small UZA that is located within the planning boundaries of a Transportation Management Area (TMA) must be obligated to that small UZA, as discussed in subsection (g) below.

(b) STIC Apportionments

SAFETEA-LU establishes a one percent set-aside program from section 5307 that provides funding to UZAs under 200,000 in population that operate at a level of service equal to or above the industry average level of service for all UZAs with a population of at least 200,000 but not more than 999,999, in one or more of six performance categories: Passenger miles traveled per vehicle revenue mile, passenger miles traveled per vehicle revenue hour, vehicle revenue miles per capita, vehicle revenue hours per capita, passenger miles traveled per capita, and passengers per capita. The data for these categories comes from the most current National Transit Database (NTD) reports. This data is used to determine a UZA's eligibility under the STIC formula, and is also used in the STIC apportionment calculations. Because this performance data change with each year's NTD reports the eligible STIC UZAs may vary each year. The performance categories for providing bonus grants to STIC were established in the September 2000 FTA report to Congress called ``The Urbanized Area Formula Program and the Needs of Small Transit Intensive Cities.''

(c) Transit Enhancements

SAFETEA-LU requires that one percent of section 5307 funds apportioned to UZAs with populations of 200,000 or more be spent on eligible transit enhancement activities or projects. This requirement is now treated as a certification, rather than as a set-aside as was the case under TEA-21. Grantees in UZAs with populations of 200,000 or more will be certifying they are spending not less than one percent of section 5307 funds for transit enhancements and will be required to

[[Page 71958]]

submit an annual report on how they spent the money. The report must be submitted with the Federal fiscal year's final quarterly progress report in TEAM-Web. The report should include the following elements: (a) Grantee name, (b) UZA name and number, (c) FTA project number, (d) transit enhancement category, (e) brief description of enhancement and progress towards project implementation, (f) activity line item code from the approved budget, and (g) amount awarded by FTA for the enhancement. The list of transit enhancement categories and activity line item (ALI) codes may be found in FTA Circular 9030.1C, Urbanized Area Formula Program: Grant Application Instructions, dated October 1, 1998, and in the table of Scope and ALI codes on TEAM-Web, which can be accessed at http://ftateamweb.fta.dot.gov/.

The term ``transit enhancement'' includes projects or project elements that are designed to enhance mass transportation service or use and are physically or functionally related to transit facilities. Eligible enhancements include the following: (1) Historic preservation, rehabilitation, and operation of historic mass transportation buildings, structures, and facilities (including historic bus and railroad facilities); (2) bus shelters; (3) landscaping and other scenic beautification, including tables, benches, trash receptacles, and street lights; (4) public art; (5) pedestrian access and walkways; (6) bicycle access, including bicycle storage facilities and installing equipment for transporting bicycles on mass transportation vehicles; (7) transit connections to parks within the recipient's transit service area; (8) signage; and (9) enhanced access for persons with disabilities to mass transportation.

It is the responsibility of the MPO to determine how the one percent for transit enhancements will be allotted to transit projects. The one percent minimum requirement does not preclude more than one percent being expended in a UZA for transit enhancements. However, items that are only eligible as enhancements--in particular, operating costs for historic facilities--may be assisted only within the one-
percent funding level.

(d) Transit Security Projects

Each recipient of Urbanized Area Formula funds must certify that of the amount received each fiscal year, it will expend at least one percent on ``public transportation security projects'' or must certify that it has decided the expenditure is not necessary. For applicants not eligible to receive section 5307 funds for operating assistance, only capital security projects may be funded with the one percent. SAFETEA-LU, however, expanded the definition of eligible ``capital'' projects to include specific crime prevention and security activities, including: (1) Projects to refine and develop security and emergency response plans; (2) projects aimed at detecting chemical and biological agents in public transportation; (3) the conduct of emergency response drills with public transportation agencies and local first-response agencies; and (4) security training for public transportation employees but excluding all expenses related to operations, other than such expenses incurred in conducting emergency drills and training. New ALI codes have been established for these four new capital activities. The one percent may also include security expenditures included within other capital activities, and, where the recipient is eligible, operating assistance. The relevant ALI codes would be used for those activities.

Given the importance of transit security, FTA is often called upon to report to Congress and others on how grantees are expending Federal funds for security enhancements. To facilitate tracking of grantees' security expenditures, which are not always evident when included within larger capital or operating activity line items in the grant budget, we have established a new non-additive (``non-add'') scope code for security expenditures--Scope 991. The non-add scope is to be used to aggregate activities included in other scopes, and it does not increase the budget total. Section 5307 grantees should include this non-add scope in the project budget for each new section 5307 grant application or amendment. Under this non-add scope, the applicant should repeat the full amount of any of the line items in the budget that are exclusively for security and include the portion of any other line item in the project budget that is attributable to security, using under the non-add scope the same line item used in the project budget. The grantee can modify the ALI description or use the extended text feature, if necessary, to describe the security expenditures.

If the grantee has certified that it is not necessary to expend one percent for security, the section 5307 grant application must include information to support that certification.

To summarize, a grant application requesting 5307 funds cannot be considered complete until the applicant has indicated whether it will or will not expend one percent of the 5307 funds being requested for security purposes. If the applicant has determined expenditure for security purposes is not necessary, an explanation must be provided. FTA is implementing these new grant application procedures in response to requests for information from the Inspector General.

(e) FY 2006 Operating Assistance

Several SAFETEA-LU provisions allow FY 2006 Urbanized Area Formula funds to be used for operating assistance in a UZA with a population of 200,000 or more. They include: (1) Continuation of the operating assistance flexibility provisions of TEA-21 that allows transit systems in UZAs that crossed over the 200,000 population threshold, as a result of the 2000 Census, to use 5307 funds for operating assistance; (2) a provision applicable to portions of the UZAs between 200,000 and 225,000 in population that meet certain criteria; (3) a provision for certain local governmental authorities that lie outside the service area of the principal public transportation agency that serves the Houston, TX UZA; and (4) language that stipulates that section 5307 funds made available to the Anchorage UZA under fixed guideway tiers of the section 5307 apportionment formula shall be made available to the Alaska Railroad for any costs related to passenger operations. In addition, language in section 3027(c)(3) of TEA-21, as amended, is still applicable and allows the use of funds for operating assistance by certain recipients of section 5307 funds, in a UZA at least 200,000 in population, that provide service exclusively for elderly persons and persons with disabilities and operate 20 or fewer vehicles.

The requirements for each of the above provisions are described below.

  • (1) Section 5307(b)(2) provides exception to the use of operating assistance in UZAs that grew in population from under 200,000 to over 200,000, as a result of the 2000 Census. This exception allows for the use of funds for operating assistance in eligible UZAs at 100% of the grandfathered amount for FY 2005 funds, but this amount ``phases down and out'' to 50 percent in FY 2006, 25 percent in FY 2007, and zero percent in FY 2008. FTA has identified and listed all eligible UZAs in previous years apportionment notices (FY 2003-FY 2005), along with the maximum amount of the area's 5307 fund that could be used for operating. A similar list will be included in the FY 2006 apportionment Notice.

  • (2) Section 5307(b)(1)(E) provides for grants for the operating costs of equipment and facilities for use in public transportation in the Evansville,

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    IN-KY urbanized area, for a portion or portions of the UZA if: The portion of the UZA includes only one State; the population of the portion is less than 30,000; and the grants will be not used to provide public transportation outside of the portion of the UZA.

  • (3) Section 5307(b)(1)(F) provides operating costs of equipment and facilities for use in public transportation for local governmental authorities in areas which adopted transit operating and financing plans that became a part of the Houston, Texas UZA as a result of the 2000 decennial census of population, but lie outside the service area of the principal public transportation agency that serves the Houston UZA.

  • (4) Section 5336(a)(2) prescribes the formula to be used to apportion section 5307 funds to UZAs with population of 200,000 or more. SAFETEA-LU amended 5336(a)(2) to add language that stated, ``* * * except that the amount apportioned to the Anchorage urbanized area under subsection (b) shall be available to the Alaska Railroad for any costs related to its passenger operations.'' This language has the effect of directing that funds apportioned to the Anchorage urbanized area, under the fixed guideway tiers of the section 5307 apportionment formula, be made available to the Alaska Railroad, and that these funds may be used for any capital or operating costs related to its passenger operations.

  • (5) Section 3027(c)(3) of TEA-21, as previously amended, provides an exception to the restriction on the use of operating assistance in a UZA with a population of 200,000 or more, by allowing transit providers/grantees that provide service exclusively to elderly persons and persons with disabilities and that operate 20 or fewer vehicles to use section 5307 funds apportioned to the UZA for operating assistance. The total amount of funding made available for this purpose under section 3027(c)(3) of TEA-21, as amended, is $1.4 million. Transit providers/grantees eligible under this provision have already been identified.

Unless one of the exceptions noted above applies, the use of FY 2006 Urbanized Area Formula funds for operating assistance is available only to small UZAs. For small UZAs, there is no limitation on the amount of the Governor's apportionment that may be used for operating assistance, and the Federal/local share ratio is 50/50.

(f) Expansion of Local Match Eligibility

SAFETEA-LU expands the categories of funds that can be used as local match for section 5307 projects. The newly eligible sources are advertising and concessions revenue, social service contract revenue, and revenue bonds proceeds.

Pursuant to 49 U.S.C. 5307(e) the Federal share of a grant under Section 5307 is 80 percent of net project cost for a capital project and 50 percent of net project cost for operating assistance. The remainder of the net project cost (i.e., 20 percent and 50 percent, respectively) shall be provided from the following sources:

  1. In cash from non-Government sources other than revenues from providing public transportation services;
  2. From revenues derived from the sale of advertising and concessions;
  3. From an undistributed cash surplus, a replacement or depreciation cash fund or reserve, or new capital;
  4. From amounts received under a service agreement with a State or local social service agency or private social service organization; and
  5. Proceeds from the issuance of revenue bonds. In addition, funds from section 403(a)(5)(C)(vii) of the Social Security Act (42 U.S.C. 603(a)(5)(C)(vii)) can be used to match Urbanized Area Formula funds.
(g) Designated Transportation Management Areas (TMA)

Guidance for setting the boundaries of TMAs is in the joint transportation planning regulations codified at 23 CFR part 450 and 49 CFR part 613. In some cases, the TMA planning boundaries established by the MPO for the designated TMA includes one or more small UZAs. In addition, one small UZA (Santa Barbara, CA) has been designated as a TMA. In either of these situations, the Governor cannot allocate ``Governor's Apportionment'' funds attributed to the small UZAs to other areas; that is, the Governor only has discretion to allocate Governor's Apportionment funds attributable to areas that are outside of designated TMA planning boundaries.

The list of small UZAs included within the planning boundaries of designated TMAs is provided in the table below.
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The MPO must notify the Associate Administrator for Program Management, Federal Transit Administration, 400 Seventh Street, SW., Washington, DC 20590, in writing, no later than July 1 of each year, to identify any small UZA within the planning boundaries of a TMA.

(h) Urbanized Area Formula Funds Used for Highway Purposes

Funds apportioned to a TMA are eligible for transfer to FHWA for

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highway projects. However, before funds can be transferred, the following conditions must be met: (1) Such use must be approved by the MPO in writing, after appropriate notice and opportunity for comment and appeal are provided to affected transit providers; (2) in the determination of the Secretary, such funds are not needed for investments required by the Americans with Disabilities Act of 1990 (ADA); and (3) the MPO determines that local transit needs are being addressed.

The MPO should notify the appropriate FTA Regional Administrator of its intent to use FTA funds for highway purposes, as prescribed in section VIII D below. Urbanized Area Formula funds that are designated by the MPO for highway projects will be transferred to and administered by FHWA.

3. Basis for Formula Apportionment

Urbanized Area Formula Program funds are apportioned based on legislative formulas. Different formulas are used for UZAs with populations of 200,000 or more and UZAs with populations of less than 200,000. For UZAs of 50,000 to 199,999 in population, the formula is based simply on population and population density. For UZAs with populations of 200,000 and more, the formula is based on a combination of bus revenue vehicle miles, bus passenger miles, fixed guideway revenue vehicle miles, and fixed guideway route miles, as well as population and population density.

To comply with language in the SAFETEA-LU conference report, we will combine a UZA's section 5307, STIC, and section 5340 apportionment amounts and publish a single amount. For technical assistance purposes we will identify the UZAs that received STIC funds each year and will make available breakouts of the funding allocated to each UZA under 5307, STIC and 5340 formulas, upon request to the regional office.

4. Period of Availability

Urbanized Area Formula funds will remain available to be obligated by FTA to recipients for four fiscal years--which include the year of apportionment plus three additional years. Any apportioned funds that remain unobligated after this period will revert to FTA for reapportionment.

5. Other Program Information

Population and population density statistics from the 2000 Census and (when applicable) validated mileage and transit service data from transit providers' 2004 NTD Report Year will be used to calculate a UZA's FY 2006 Urbanized Area Formula apportionment when FY 2006 funds are appropriated.

We will calculate dollar unit values for the formula factors used in the Urbanized Area Formula program apportionment. These values represent the amount of money each unit of a factor is worth in the FY 2006 apportionment. The unit values change each year as a result of changes in the data used to calculate a particular year's apportionments. The FTA apportionment amount for a UZA may be replicated by multiplying the dollar unit value by the appropriate formula factor.

D. Clean Fuels Grant Program (49 U.S.C. 5308)

SAFETEA-LU establishes the Clean Fuels Grant Program--formerly the Clean Fuels Formula Program under TEA-21--to support the use of alternative fuels in air quality maintenance or nonattainment areas for ozone or carbon monoxide.

1. Total Allocations

SAFETA-LU authorizes the following amounts for the Clean Fuels Grant Program for fiscal years 2006-2009.
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2. Basis for Allocation of Funds

Under SAFETEA-LU, funding for the Clean Fuels program is now appropriated on a discretionary basis rather than by formula. [Note: Congress never appropriated funds for the formula program authorized by TEA-21.]

SAFETEA-LU includes 16 projects to be funded through the Clean Fuels program in section 3044, Projects for Bus and Bus-Related Facilities and Clean Fuels Buses. Table 5 displays the SAFETEA-LU authorized Clean Fuels earmarked projects.

It is important to note that these allocations are subject to be changed by subsequent appropriations acts and additional projects may be earmarked during the appropriations process. Final Clean Fuels program allocations for FY 2006 will be published after enactment of the FY 2006 Appropriations Act.

3. Requirements

Clean Fuels program funds may be made available to any grantee in a UZA that is designated as maintenance or nonattainment area for ozone or carbon monoxide as defined in the Clean Air Act. Eligible recipients include section 5307 designated recipients as well as recipients in small UZAs. In the case of a small UZA, the State in which the area is located will act as the recipient.

Eligible projects include the purchase or lease of clean fuel buses (including buses that employ a lightweight composite primary structure), the construction or lease of clean fuel buses or electrical recharging facilities and related equipment for such buses, and construction or improvement of public transportation facilities to accommodate clean fuel buses.

If a recipient wishes to use funds designated under the program in SAFETEA-LU for eligible project activities outside the scope of a project designation, the recipient must submit its request for reprogramming to the House and Senate Authorizing Committees for resolution. Changes to designations that are in statute, as opposed to report language, can only be made in law. If in the future, Congress designates projects in report language, FTA will not reprogram the projects without direction from the Appropriations Committees.

Unless otherwise specified in law, grants made under the Clean Fuels program must meet all other eligibility requirements as outlined in section 5308.

4. Period of Availability

Funds designated for specific Clean Fuels Program projects will remain available for obligation for three fiscal years, which includes the year of appropriation plus two additional fiscal years. Clean Fuels funds not obligated in a FTA grant for their original purpose at the end of the period of availability will generally be made available for other projects.

E. Capital Investments Program (49 U.S.C. 5309)--Fixed Guideway Modernization

This program provides capital assistance for the modernization of existing fixed guideway systems. Funds

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are allocated by a statutory formula to UZAs with fixed guideway systems that have been in operation for at least seven years. A ``fixed guideway'' refers to any transit service that uses exclusive or controlled rights-of-way or rails, entirely or in part. The term includes heavy rail, commuter rail, light rail, monorail, trolleybus, aerial tramway, inclined plane, cable car, automated guideway transit, ferryboats, that portion of motor bus service operated on exclusive or controlled rights-of-way, and high-occupancy-vehicle (HOV) lanes.

1. Authorized Amounts

SAFETEA-LU authorizes the following amounts for the Fixed Guideway Modernization for fiscal years 2006-2009:
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2. Basis for Formula Apportionment

The formula for allocating the Fixed Guideway Modernization funds contains seven tiers. The apportionment of funding under the first four tiers is based on amounts specified in law and NTD data used to apportion funds in FY 1997. Funding under the last three tiers is apportioned based on the latest available data on route miles and revenue vehicle miles on segments at least seven years old, as reported to the NTD. Because the Fixed Guideway Modernization apportionment formula did not change from TEA-21 to SAFETEA-LU, you may refer to Table 8 of the FTA Fiscal Year 2005 Apportionments, Allocations and Program Information Notice for additional information and details on the formula.

3. Requirements

Fixed Guideway Modernization funds must be used for capital projects to maintain, modernize, or improve fixed guideway systems. Eligible UZAs (those with a population of 200,000 or more) with fixed guideway systems that are at least seven years old are entitled to receive Fixed Guideway Modernization funds. A threshold level of more than one mile of fixed guideway is required in order to receive Fixed Guideway Modernization funds. Therefore, UZAs reporting one mile or less of fixed guideway mileage under the NTD are not included. Program guidance for Fixed Guideway Modernization is presently found in FTA Circular C9300.1A, Capital Program: Grant Application Instructions, dated October 1, 1998. FTA is in the process of updating this circular to incorporate changes resulting from language in SAFETEA-LU.

4. Period of Availability

Funds apportioned under the Fixed Guideway Modernization Program will remain available to be obligated by FTA to recipients for four fiscal years--which include the year of apportionment plus three additional years. Any apportioned funds that remain unobligated at the end of this period will revert to FTA for reapportionment under the program.

5. Other Program Information

Generally, there were no changes to the formula or eligibility criteria for the program in SAFETEA-LU from those specified in TEA-21. However, sections 5337(f) (g) of SAFETEA-LU provides for the inclusion of Morgantown, WV (population 55,997) as an eligible UZA for purposes of apportioning fixed guideway modernization funds. Also, language in section 5336(b) has the impact of directing FTA to use 60 percent of the directional route miles attributable to the Alaska Railroad passenger operations system to calculate apportionments for the Anchorage, AK UZA under the 5307 and Fixed Guideway Modernization formulas.

F. Capital Investments (49 U.S.C. 5309)--Bus and Bus-Related Facilities

The Bus and Bus-Related Facilities program provides capital assistance for new and replacement buses and related equipment and facilities.

1. Authorized Amounts

SAFETEA-LU authorizes the following amounts for the Bus and Bus-
Related Facilities program for fiscal years 2006-2009.
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2. Basis for Allocation of Funds

Funding is appropriated on a discretionary basis. SAFETEA-LU includes 646 earmarked projects to be funded through the Bus Program in section 3044, Projects for Bus and Bus-Related Facilities and Clean Fuels Buses. Table 4 displays the SAFETEA-LU authorized earmarked projects.

It is important to note that these allocations are subject to be changed by subsequent appropriations acts and additional projects may be earmarked during the appropriations process. Final Bus and Bus-
Related Facilities program allocations for FY 2006 will be published after enactment of the FY 2006 Appropriations Act.

3. Requirements

Eligible capital projects include the acquisition of buses for fleet and service expansion, bus maintenance and administrative facilities, transfer facilities, bus malls, transportation centers, intermodal terminals, park-and-ride stations, acquisition of replacement vehicles, bus rebuilds, bus preventive maintenance, passenger amenities such as passenger shelters and bus stop signs, accessory and miscellaneous equipment such as mobile radio units, supervisory vehicles, fare boxes, computers, and shop and garage equipment.

A general provision in the appropriations acts of FY 2004 (section 547) and FY 2005 (section 125) contained language making the earmarked projects eligible under the program ``notwithstanding any other provision of law.'' SAFETEA-LU did not include a similar ``Notwithstanding'' provision, but the wording of certain bus program earmarks included expanded eligibility. The FY 2006 Appropriations Act might modify some of the authorized earmarks. Unless stated in law to the contrary, projects

[[Page 71962]]

earmarked prior to FY 2004 must conform to the eligibility requirements of the Bus and Bus-Related Facilities program.

If a recipient wishes to apply for use of funds designated under the Bus and Bus-Related Facilities program in SAFETEA-LU for project activities outside the scope of the project designation, the recipient must submit its request for reprogramming to the House and Senate Authorizing Committees for resolution. Changes to earmarks that are in statute, as opposed to report language, can only be made in law. FTA will not reprogram projects earmarked by Congress in report language without direction from the Appropriations Committees.

Grants made under the Bus and Bus-Related Facilities program must meet all other eligibility requirements as outlined in section 5309 unless otherwise specified in law.

Program guidance for Bus and Bus-Related Facilities is found in FTA Circular C9300.1A, Capital Program: Grant Application Instructions. FTA is in the process of updating this circular to incorporate changes resulting from language in SAFETEA-LU.

4. Period of Availability

Funds designated for specific Bus Program projects remain available for obligation for three fiscal years--which includes the fiscal year in which the amount is made available or appropriated plus two additional years. Bus and Bus-Related Facilities funds not obligated in a FTA grant for their original purpose by the end of this period will generally be made available for other projects.

Prior year unobligated balances for Bus and Bus-Related Facilities allocations in the amount of $723,995,747 remain available for obligation in FY 2006. The amounts that remain unobligated as of September 30, 2005, can be found in Table 6. Projects appropriated prior to FY 2004 and extended in the FY 2006 Appropriations Act or accompanying Conference Report will be included in the FY 2006 Apportionments and Allocations Notice.

5. Other Program Information

The Bus Program remains largely unchanged with the passage of SAFETEA-LU; however, one significant change is the inclusion of private companies engaged in public transportation and private non-profit organizations as eligible subrecipients of FTA grants. Prior to SAFETEA-LU, private non-profit entities could only receive FTA funds if they were selected by a public authority through a competitive process, and private operators were not eligible subrecipients. Private operators may now receive FTA funds as a pass-through without competition if they are included in a program of projects submitted by the designated public authority acting as the direct recipient of a grant.

G. Capital Investment Program (49 U.S.C. 5309)--New Starts

SAFETEA-LU made several changes in the way funding is allocated for New Starts projects. Beginning in FY 2007, $200,000,000 each year is designated for ``Small Starts'' (section 5309(e)) projects with a New Starts share of less than $75,000,000 and a net project cost of less than $250,000,000. Major Capital Investment grants of $75,000,000 or more (section 5309 (d)) will receive $7.4 billion over the five years. In addition, SAFETEA-LU authorizes 38 projects for FD and 264 projects for PE. The total amount of FY 2006-2009 funding for 31 existing FFGA projects is $2,136,764,604. Fifty-two additional New Starts projects are authorized for a total of $3,237,700,000 during SAFETEA-LU.

Congress allocated $10,500,000 to Alaska and Hawaii for ferryboats each year of TEA-21 and for FY 2005. SAFETEA-LU allocates $15,000,000 to Alaska and Hawaii for ferryboats for FY 2006-FY 2009. The allocation is split equally between Alaska and Hawaii.

SAFETEA-LU also makes $5,000,000 available for each year, FY 2006-
FY 2009, to the Denali Commission in Anchorage, Alaska under the terms of section 307(e) of the Denali Commission Act of 1998 (42 U.S.C. 3121) for docks, waterfront development projects and related transportation infrastructure. The Commission was established to (1) deliver the services of the Federal Government cost effectively, (2) provide job training and other economic development services in rural communities, and (3) promote rural development, provide power generation and transmission facilities, modern communication systems, water and sewer systems and other infrastructure needs.

1. Authorized Amounts

SAFETEA-LU authorizes the following amounts for the New Starts program for fiscal years 2006-2009.
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2. Requirements

Because New Starts projects are earmarked in law rather than report language, reprogramming for a purpose other than that specified must also occur in law. New Starts projects are subject to a complex set of approvals related to planning and project development set forth in 49 CFR part 611. Program guidance for New Starts is found in FTA Circular C9300.1A, Capital Program: Grant Application Instructions, dated October 1, 1998; and C5200.1A, Full Funding Grant Agreement Guidance, dated December 5, 2002. FTA is in the process of updating these circulars to incorporate changes resulting from language in SAFETEA-LU.

3. Period of Availability

New Starts funds remain available for three fiscal years--which includes the fiscal year the funds are made available or appropriated plus two additional years. Funds may be extended by Congress or made available for other projects after the period of availability has expired.

4. Other Program Information and Highlights

Prior year unobligated allocations for New Starts in the amount of $557,727,154 remain available for obligation in FY 2006. This amount includes $112,052,679 in FY 2004 and $445,674,475 in FY 2005 unobligated allocations. These unobligated amounts are displayed in Table 7.

H. Special Needs of Elderly Individuals and Individuals with Disabilities Program (49 U.S.C. 5310)

This program provides formula funding to States for capital projects to assist in meeting the transportation needs of the elderly and persons with disabilities. The State (or State-designated agency) administers the section 5310 program. The State's responsibilities include: notifying eligible local entities of funding

[[Page 71963]]

availability; developing project selection criteria; determining applicant eligibility; selecting projects for funding; and ensuring that all subrecipients comply with Federal requirements. Eligible nonprofit organizations or public bodies must apply directly to the designated State agency for assistance under this program.

FTA invites comment regarding technical assistance or training that would be helpful to grantees in implementing the Special Needs of Elderly Individuals and Individuals with Disabilities program. Additionally, FTA seeks comment on strategies and measures that could be employed to evaluate the successes of this program.

1. Authorized Amounts

SAFETEA-LU authorizes the following amounts for the Special Needs of Elderly Individuals and Individuals with Disabilities program for fiscal years 2006-2009.
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2. Basis for Formula Apportionment

Funds are allocated according to a formula based on the number of elderly individuals and individuals with disabilities in each State using Census 2000 data.

3. Requirements and Eligible Expenses

Funds are available to support the capital costs of transportation services for older adults and people with disabilities. Uniquely under this program, eligible capital costs include the acquisition of service. Capital assistance is provided on an 80 percent Federal, 20 percent local matching basis except that SAFETEA-LU allows states eligible for the sliding scale match under FHWA programs to use that match ratio for section 5310 capital projects. Funds provided under other Federal programs (other than those of the Department of Transportation, with the exception of the Federal Lands Highway Program established by section 204 of Title 23 U.S.C.) may be used as match for capital funds provided under section 5310. Revenue from service contracts may also be used as local match.

Those eligible to receive section 5310 funding include private nonprofit agencies, public bodies approved by the state to coordinate services for elderly persons and persons with disabilities, or public bodies which certify to the Governor that no nonprofit corporations or associations are readily available in an area to provide the service.

States may use up to ten percent of their annual apportionment to administer, plan, and provide technical assistance for a funded project. Beginning in FY 2006, no local share is required for these program administrative funds. FTA previously administratively allowed States to use ten percent of the capital funds for administration at the capital matching share, but SAFETEA-LU specifically allows ten percent for administration.

The section 5310 program was previously subject to the requirements of section 5309 to the extent the Secretary determined appropriate. SAFETEA-LU changed the applicable requirements to 5307, to the extent the Secretary determines appropriate. FTA is not applying any new requirements to the section 5310 program as a result of this technical change.

4. Planning and Consultation

Beginning in FY 2007, the State recipient must certify that: the projects selected were derived from a locally developed, coordinated public transit-human services transportation plan; and, the plan was developed through a process that included representatives of public, private, and nonprofit transportation and human services providers and participation by the public. Projects in the locally developed, coordinated public transit-human services transportation plan must be integrated into and consistent with the metropolitan and state planning processes. Finally, each grant recipient must certify that allocations of the grant to subrecipients are distributed on a fair and equitable basis.

The planning requirement is also a requirement in two additional programs. The Job Access Reverse Commute program (in FY 2006) and the New Freedom program (in FY 2007) will also be required to have a coordinated human service plan. It is anticipated that most areas will develop one consolidated plan for all the programs, which may include separate elements and other human service transportation programs. FTA seeks comment on the specific aspects of the collaborative planning process (for example, participants, elements, measures, etc.). FTA also seeks comment on the relationship between the public transit-human services plans and other planning processes.

Program guidance is found in FTA C 9070.1E, dated October 1, 1998. FTA is in the process of updating this circular to incorporate changes resulting from language in SAFETEA-LU.

5. Period of Availability

There is no statutory period of availability for section 5310. Given the relatively simple nature of the state administered program with many subrecipients receiving small capital grants, FTA previously allowed only one year of availability. Given the new common planning requirement with JARC and New Freedom, beginning with FY 2006 funding, FTA is extending the period of availability for section 5310 to three years, which includes the year funds are apportioned plus two additional years, consistent with the other two programs.

6. Other Program Information

Under Title III of SAFETEA-LU section 3012(b), the following states are named as eligible to use up to 33 percent of their section 5310 funds starting in FY 2006 for operating expenses: Wisconsin, Alaska, Minnesota, and Oregon. FTA is authorized to select an additional three states to participate in the pilot. FTA issued a separate Federal Register Notice on November 14, 2005, specifying the guidelines for States participation in the pilot and soliciting proposals from states to participate. If possible, given the timing of the FY 2006 appropriations act, we anticipate announcing the participants with the FY 2006 apportionments.

7. Transfer of 5310 Funds to Other FTA Programs

Section 5310 funds may be transferred to the section 5311 or the section 5307 program, but only to implement projects competitively selected under the section 5310 program. The purpose of the transfer provision under SAFETEA-LU is for administrative streamlining of grant making, not to supplement the resources available under the Urbanized Area Formula or Non-urbanized Area Formula programs, as was the case under TEA-21. A State that transfers section 5310 funds to section 5307 must certify that each project for which the

[[Page 71964]]

funds are transferred has been coordinated with private nonprofit providers of services. FTA has established a new scope code (641) to track 5310 projects included within a section 5307 or 5311 grant. Transfer to section 5307 or 5311 is permitted but not required. FTA will also award stand-alone section 5310 grants with the section code 16 in the project number.

I. Nonurbanized Area Formula Program (49 U.S.C. 5311)

This program provides formula funding to States and Indian Tribes for the purpose of supporting public transportation in areas with a population of less than 50,000. Funding may be used for capital, operating, State administration, and project administration expenses. Each State prepares an annual program of projects, which must provide for fair and equitable distribution of funds within the States, including Indian reservations, and must provide for maximum feasible coordination with transportation services assisted by other Federal sources. SAFETEA-LU identifies Indian Tribes as direct recipients under section 5311.

1. Authorized Amounts

SAFETA-LU authorizes the following amounts for the Nonurbanized Areas Formula program.
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In addition to the funds made available to States under section 5311, approximately 16 percent of the funds authorized for the new section 5340 Growing States and High Density States formula factors will be apportioned to States for use in nonurbanized areas. The portion of the section 5340 authorized funds allocable to States for nonurbanized areas is shown in the following table.
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The States receive funding for nonurbanized areas only from the Growing States portion of the 5340 formulas. Fifty percent of the funds authorized for section 5340 are allotted to Growing States and the other 50 percent goes to High Density. The High Density formula allocates all of its funds to urbanized areas.

Funding for the Tribal Transit Program, oversight, and the Rural Transportation Assistance Program (RTAP) will be taken off the top before amounts are apportioned to the States. Takedowns for Tribal Transit and RTAP based on authorized funding levels are shown below.
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2. Basis for Formula Apportionment

SAFETEA-LU changed the formula for section 5311. Starting in FY 2006, twenty percent of the funds available will be apportioned to the states based on land area in nonurbanized areas with no state receiving more than 5 percent of the amount apportioned. The remaining eighty percent will be apportioned based on nonurbanized population, as before. The effect of this change is to provide additional resources to low density States.

3. Requirements

The Nonurbanized Area Formula Program provides capital, operating and administrative assistance for areas with a population under 50,000. The Federal share for capital assistance is 80 percent and for operating assistance is 50 percent, except that SAFETEA-LU allows states eligible for the sliding scale match under FHWA programs to use that match ratio for section 5311 capital projects and 62.5 percent of the sliding scale capital match ratio for operating projects.

Each State must spend no less than 15 percent of its FY 2005 Nonurbanized Area Formula apportionment for the development and support of intercity bus transportation, unless the State certifies, after consultation with affected intercity bus service providers, that the intercity bus service needs of the State are being adequately met. SAFETEA-LU added this requirement for consultation with the industry to strengthen the certification requirement. FTA also encourages consultation with other stakeholders, such as communities affected by loss of intercity service.

Program guidance for the Nonurbanized Area Formula Program is found in FTA C 9040.1E, Nonurbanized Area Formula Program Guidance and Grant Application Instructions, dated October 1, 1998. FTA is in the process of updating this circular to incorporate changes resulting from language in SAFETEA-LU.

4. Period of Availability

Funds apportioned to States under the Nonurbanized Area Formula Program will remain available for three fiscal years--which includes the fiscal year the funds were apportioned plus two additional years. Any funds that remain unobligated at the end of this period will revert to FTA for allocation among the States under the Nonurbanized Area Formula Program.

5. Other Program Information

SAFETEA-LU added a requirement to provide rural transit data to the NTD. Each recipient under the section 5311 program shall submit an annual report to the Secretary, containing information

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on capital investments, operations, and service provided with funds received under the section 5311 program. SAFETEA-LU specifies that the report should include information on total annual revenue, sources of revenue, total annual operating costs, total annual capital costs, fleet size and type, and related facilities, revenue vehicle miles, and ridership. In consultation with State Departments of Transportation, FTA previously developed a voluntary state-based rural data module for the NTD. The existing NTD Rural Data Reporting Module manual and reporting instructions can be reviewed on the NTD Web site, http://www.ntdprogram.gov/ntdprogram/.
For each 5311 subrecipient, the State Department of Transportation will complete a one-page form of basic data. The existing module will serve as a basis for reporting requirements for the new, mandatory Rural Reporting Module of the NTD. Pursuant to SAFETEA-LU, mandatory reporting will begin with the FY 2006 NTD Report Year. The first reports will be due on October 28, 2006, for those States with fiscal years ending between January 1 and June 30, 2006; on January 28, 2007, for those States with fiscal years ending between July 1 and September 30, 2006; and April 30, 2007, for those States with fiscal years ending between October 1 and December 31, 2006. To enter data and receive additional instructions, State Departments of Transportation can go to the NTD Web site. FTA requests public comment on whether the State-based rural data module should serve as the basis for the new mandatory reporting requirements.

J. Rural Transportation Assistance Program (49 U.S.C. 5311(b)(2))

This program provides funding to assist in the design and implementation of training and technical assistance projects, research, and other support services tailored to meet the needs of transit operators in nonurbanized areas.

1. Authorized Amounts

SAFETEA-LU changes the source of funding for RTAP. Previously funded under the National Planning and Research Program, starting in FY 2006, RTAP is funded as a two percent takedown from the amount authorized and appropriated for section 5311. The takedown amount based on funds authorized for section 5311 for fiscal years 2006-2009 is as follows:
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Of the takedown, FTA may use up to 15 percent for projects of a national scope. The remaining 85 percent is allocated to the States.

2. Basis for Formula Apportionment

For FY 2006, FTA will use the current administrative formula. Funds are allocated to the States by an administrative formula consisting of a $65,000 floor for each State ($10,000 for territories), with the balance allocated based on nonurbanized population in the 2000 Census. The floor was raised from $50,000 to $65,000 in FY 1999. Comments are invited on whether the floor should again be raised and whether the low density portion of the section 5311 formula should be used.

3. Program Requirements

Funds are allocated to the States to undertake research, training, technical assistance, and other support services to meet the needs of transit operators in nonurbanized areas. These funds are to be used in conjunction with a State's administration of the Nonurbanized Area Formula Program.

4. Period of Availability

Funds apportioned to States under RTAP will remain available for three fiscal years--which includes the fiscal year the funds were apportioned plus two additional years. Any funds that remain unobligated after the end of this period will revert to FTA for allocation among the States under the RTAP.

5. Other Program Information

The National RTAP project is administered by the American Public Works Association in consortium with the Community Transportation Association of America, under a cooperative agreement re-competed at five-year intervals. The projects are guided by a project review board of managers of rural transit systems and State Department of Transportation rural transit programs. National RTAP resources have also supported the biennial TRB National Conference on Rural Public and Intercity Bus Transportation. The percentage takedown for RTAP, combined with rising funding levels for section 5311, make additional resources available for national projects such as providing technical assistance for the new tribal transit program. FTA invites comments on use of the National RTAP resource.

K. Public Transportation on Indian Reservations Program (49 U.S.C. 5311(c)(1))

SAFETEA-LU creates a new Tribal Transit Program as a takedown under the section 5311 program. Indian Tribes are defined as eligible direct recipients. The funds are to be apportioned for grants to Indian Tribes for any purpose eligible under section 5311, which includes capital and operating assistance for rural public transit services. Support for rural intercity bus service, including planning and marketing, is eligible. Planning for rural transit is not eligible. FTA will develop procedures for the Tribal Transit program in consultation with tribal leaders and other interested stakeholders and will provide an opportunity for the public to comment on its new methodology.

1. Authorized Funding

The takedown amount authorized for Tribal Transit for fiscal years 2006-2009 is as follows:
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2. Basis for Formula Apportionment

SAFETEA-LU does not specify a basis for formula apportionment. FTA will develop procedures for allocating the funds in consultation with the Tribes and with opportunity for public comment. An interim measure would be to allocate FY 2006 funds based on responses to a request for letters of interest. FTA requests comments on the feasibility of allocating FY 2006 funds based on this approach. Because planning is not an eligible activity under the program, FTA is considering limiting transit participation to Tribes which already have transit options or which have already conducted planning and are prepared to implement new transit service. We seek comments on what criteria should be considered in selecting Tribes to receive funding and what factors should be used in allocating available funds among successful applicants.

3. Requirements

Grants may be made to Indian Tribes for any purpose eligible under section 5311. Eligibility under section 5311 includes capital and operating assistance for local public transportation service in other than urbanized areas. Planning is not an eligible activity except under section 5311(e), which allows States to use 15 percent of a States' apportionment for administration, planning, and technical assistance, and 5311(f), which allows planning for intercity bus transportation. Support for rural intercity bus service is eligible under section 5311.

FTA may establish the terms and conditions for the program. FTA seeks comments about appropriate terms and conditions for the program. We especially invite comments from Tribes that previously received FTA funding about which requirements we should consider waiving for the Tribal Transit program.

4. Period of Availability

Funds will remain available for three fiscal years, which includes the fiscal year the funds were apportioned or appropriated plus two additional years. Any funds that remain unobligated after this period will revert to FTA for reallocation among the Tribes.

5. Other Program Information

The funds set aside for Indian Tribes are not meant to replace or reduce funds that Indian Tribes receive from states through the section 5311 program but are to be used to enhance public transportation on Indian reservations. Funds allocated to Tribes by the States may be included in the State's section 5311 application or awarded by FTA in a grant directly to the tribe. We encourage Tribes intending to apply to FTA as direct recipients to contact the appropriate FTA regional office at the earliest opportunity.

Planning for Tribal Transit projects may be funded under the following programs: FTA and FHWA Statewide Planning programs; the State's apportionment under section 5311; and the Indian Reservation Roads Program (IRR). Technical assistance for Tribes may be available from the State DOT using the State's allocation of RTAP or funds available for State administration under section 5311, from the Tribal Transportation Assistance Program (TTAP) Centers supported by FHWA, and from the Community Transportation Association of America under a program funded by the United States Department of Agriculture (USDA). The National RTAP will also be developing new resources for Tribal Transit.

L. National Research Program (49 U.S.C. 5314)

FTA's National Research Programs include the National Research and Technology Program (NRTP), Project ACTION, the National Technical Assistance Center for Senior Transportation, and the Medical transportation grants program.

Through funding under these programs, FTA seeks to deliver solutions that improve public transportation. FTA's Strategic Research Goals are to provide transit research leadership, increase transit ridership, improve capital and operating efficiencies, improve safety and emergency preparedness, and to protect the environment and promote energy independence. For more information contact Bruce Robinson, Office of Research, Demonstration and Innovation, at (202) 366-4209.

1. Authorized Funding

SAFETEA-LU authorizes the following amounts for the National Research Program for fiscal years 2006-2009.
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SAFETEA-LU project authorizations under the National Research Program are listed in Table 8.

All research and research and development projects are subject to a 2.6% reduction for the Small Business Innovative Research Program (SBIR). FTA will make the determination as to whether or not the SBIR reduction will be applied to a particular project--based on our review of the proposed scope of work for the project.

2. Basis for Allocation of Funds

Funds not designated by Congress for specific projects and activities will be programmed by FTA based on FTA's Strategic Research Plan using competitive procedures to the maximum extent possible.

3. Requirements

Application Instructions and Program Management Guidelines are set forth in FTA Circular 6100.1C. FTA is in the process of updating this circular to incorporate changes resulting from language in SAFETEA-LU. Research projects must support FTA's Strategic Research Goals and meet the Office of Management and Budget's Research and Development Investment Criteria. All research recipients are required to work with FTA to develop approved Statements of Work. A plan to evaluate research results must be in place before award of a research grant.

Eligible activities under the NRTP include research, development, demonstration and deployment projects as defined by 49 U.S.C. 5312 (a); Joint Partnership projects for deployment of innovation as defined by 49 U.S.C. 5312(b); International Mass Transportation Projects as defined by 49 U.S.C. 5312(c); and, human resource programs as defined by 49 U.S.C. 5322.

4. Period of Availability

Funds are available until expended.

5. Other Related Information

Requests for research proposals will be published in grants.gov under CFDA 20.514.

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M. Job Access and Reverse Commute Program (49 U.S.C. 5316)

The Job Access and Reverse Commute (JARC) program provides formula funding to States and Designated Recipients to support the development and maintenance of job access projects designed to transport welfare recipients and eligible low-income individuals to and from jobs and activities related to their employment, and for reverse commute projects designed to transport residents of UZAs and other than urbanized to suburban employment opportunities. FTA invites comment regarding technical assistance or training that would be helpful to grantees in implementing the JARC program.

1. Authorized Funding

SAFETEA-LU authorizes the following amounts for the Job Access and Reverse Commute Program for fiscal years 2006-2009:
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2. Basis for Formula Apportionment

SAFETEA-LU establishes JARC as a formula program and provides that 60% of funds available be allocated to UZAs with populations of 200,000 or more persons (large UZAs); 20% to urbanized areas with populations ranging from 50,000 to 200,000 persons (small UZAs), and 20% to rural and small urban areas with populations of less than 50,000 persons. Funds are allocated to the States for small UZAs and rural and small urban areas and to designated recipients in large UZAs. A single apportionment will be published for each large UZAs.

Formula allocations are based upon the number of persons with disabilities residing in a state or metropolitan area. These figures are drawn from Census 2000 figures. In cases where a large UZA has more than one designated recipient, they may agree upon a single competitive selection process or sub-allocate funds to each designated recipient, based upon a percentage split agreed upon locally, and conduct separate planning processes and competitions.

States and designated recipients must solicit grant applications and select projects competitively, based on application procedures and requirements established by the designated recipient, consistent with the Federal JARC program objectives. In the case of large UZAs, the area-wide solicitation shall be conducted in cooperation with the appropriate MPO(s).

3. Eligible Expenses

Funds are available to support the capital and operating costs of transportation services that address the needs of welfare recipients and eligible low-income individuals that are not met by other transportation services. Federal JARC funds may be used for 80% of capital expenses and 50% of operating expenses. Funds provided under other Federal programs (other than those of the Department of Transportation) may be used for local/state match for funds provided under section 5316, and revenue from service contracts may be used as local match.

Funding is available for transportation services provided by public, non-profit, or private-for-profit operators. Assistance may be provided for a variety of transportation services and strategies directed at assisting welfare recipients and eligible low-income individuals address unmet transportation needs. Examples of projects and activities that might be funded under the program include, but are not limited to:

  • Transportation projects to finance planning, capital, and operating costs of providing access to jobs;
  • Promoting public transportation by low-income workers, including the use of public transportation by workers with nontraditional work schedules;
  • Promoting the use of transit vouchers for welfare recipients and eligible low-income individuals;
  • Promoting the use of employer-provided transportation, including the transit pass benefit program under section 132 of the Internal Revenue Code of 1986;
  • Subsidizing the costs associated with adding reverse commute bus, train, carpool, van routes, or service from urbanized areas and other than urbanized areas to suburban workplaces;
  • Subsidizing the purchase or lease by a nonprofit organization or public agency of a van or bus dedicated to shuttling employees from their residences to workplaces;
  • Facilitating the provision of public transportation services to suburban employment opportunities.

States and designated recipients may use up to ten percent of their annual apportionment to administer, plan, and provide technical assistance for a funded project. Beginning in FY 2006, no local share is required for these program administrative funds.

4. Planning and Consultation

A recipient of JARC funds must certify that projects selected were derived from a locally developed, coordinated public transit-human services transportation plan; and, the plan was developed through a process that included representatives of public, private and non-profit transportation and human service providers; participation by the public; and included those representing the needs of welfare recipients and eligible low-income individuals. Projects in the locally developed, coordinated public transit-human services transportation plan must be integrated into and consistent with the metropolitan and state planning processes. Finally, recipients must certify that allocations of the grant to subrecipients are distributed on a fair and equitable basis.

The planning requirement applies not only to JARC, but beginning in FY 2007 to the section 5310 and section 5317 (New Freedom) programs. It is anticipated that most areas will develop one consolidated plan for all the programs, which may include separate elements and other human service transportation programs. In FY 2006, in areas with no current JARC plan, the planning partners should at a minimum be consulted about projects and where possible expressions of support should be obtained and documented. For areas that previously received JARC discretionary funding, the previous JARC plan may satisfy the requirement in FY 2006. FTA seeks comment on the specific aspects of the collaborative planning process (for example, participants, elements, measures, etc.). FTA also seeks comment on the relationship between the public transit-human services plans and other planning processes.

5. Period of Availability

While there is no statutory period of availability for JARC funds, FTA is establishing a consistent three-year period of availability for JARC, New

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Freedom, and the section 5310 program, which includes the year of apportionment plus two additional years. Any funding that remains unobligated at the end of this period will revert to FTA for reapportionment among the States and large UZAs under the JARC program.

6. Program Requirements

Grants are subject to the requirements of section 5307, including certification of labor protection arrangements.

7. Transfer of JARC funding to Other FTA Programs
Administrative Transfers

States may transfer funds to FTA's section 5307 or section 5311 programs. Funds so transferred must be used for the express purposes designated by the JARC program and must meet all associated requirements. The projects for which the funds are transferred must have been competitively selected and derived from the locally coordinated public transit--human services transportation plan. The purpose of the transfer provision under SAFETEA-LU is for administrative streamlining of grant making, not to supplement the resources available under the Urbanized Area Formula or Non-urbanized Area Formula programs. This provision allows the small UZAs to apply for funding directly from FTA, rather than through a statewide grant and allows Tribes to be direct recipients. A State that transfers funds to section 5307 must certify that the JARC projects being funded have been coordinated with nonprofit providers of service.

FTA has established a new scope code (646) to be used when JARC projects are funded within a 5307 or 5311 grant. Transfer to section 5307 or 5311 is permitted but not required. FTA will also award stand-
alone JARC grants with the section code 37 in the project number.

Transfers Between Categories

States may move funds between the small UZA and the nonurbanized parts of the state apportionment, if the Governor certifies that all of the objectives of JARC are met in the specified area. States may also transfer funds in the small UZA and nonurbanized areas for projects anywhere in the State if the State has established a statewide program for meeting the objectives of JARC.

8. Prior Year Carryover

JARC earmarks carried over from TEA-21 are subject to the terms and conditions under which they were originally appropriated. The local match for both capital and operating assistance remains consistent with the TEA-21 authorization as a 50/50 match. All projects should be in the regional JARC Plan as required under TEA-21. Prior year carryover is shown in Table 9.

9. Evaluation

SAFETEA-LU requires FTA to conduct a study to evaluate the effectiveness of the JARC program (49 U.S.C. 5316(i)(2)). FTA seeks comment on strategies and measures that will evaluate the successes of this program.

N. New Freedom Program (49 U.S.C. 5317)

The New Freedom Program (NFP) was established in SAFETEA-LU. The program purpose is to provide new public transportation services and public transportation alternatives beyond those currently required by the Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et seq.) that assist individuals with disabilities with transportation, including transportation to and from jobs and employment support services.

FTA invites comment regarding technical assistance or training that would be helpful to grantees in implementing the New Freedom program. Additionally, FTA seeks comment on strategies and measures that could be employed to evaluate the successes of this program.

1. Authorized Funding

SAFETA-LU authorizes the following amounts for the New Freedom program for fiscal years 2006-2009.
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2. Basis for Formula Apportionment

SAFETEA-LU establishes a New Freedom Program as a formula program and provides that 60% of funds available be allocated to urbanized areas with populations of 200,000 or more persons (large urbanized areas); 20% to urbanized areas with populations ranging from 50,000 to 200,000 persons (small UZAs), and 20% to rural and small urban areas with populations of less than 50,000 persons (nonurbanized areas). Funds are allocated to the States for small UZAs and nonurbanized areas and to designated recipients in metropolitan areas with populations of 200,000 or more.

Formula allocations are based upon the number of persons with disabilities residing in a State or metropolitan area. The data includes elderly persons with disabilities. These figures are drawn from Census 2000 figures. In cases where a large UZA has more than one designated recipient, they may agree upon a single competitive selection process or sub-allocate funds to each designated recipient, based upon a percentage split agreed upon locally, and conduct separate planning processes and competitions.

States and designated recipients must solicit grant applications and select projects competitively, based on application procedures and requirements established by the recipient. In the case of large urbanized areas, the area-wide solicitation shall be conducted in cooperation with the appropriate MPO(s).

3. Eligible Expenses

Funds are available to support the capital and operating costs of new public transportation services and public transportation alternatives that are beyond those required by the Americans with Disabilities Act. Federal New Freedom funds may be used for 80 percent of capital expenses and 50 percent of operating expenses. There is no limitation on the amount of funds that can be used for operating expenses. Funds provided under other Federal programs (other than those of the DOT) may be used as match for capital funds provided under section 5317, and revenue from contract services may be used as local match.

Funding is available for transportation services provided by public, non-profit, or private-for-profit operators. Assistance may be provided for a variety of transportation services and strategies directed at assisting persons with disabilities address unmet transportation needs. The conference report stated that examples of projects and activities that might be funded under the program include, but are not limited to:

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  • 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 for routes that run seasonally.
  • Making accessibility improvements to existing transit and intermodal stations not designated as key stations.
  • Supporting voucher programs for transportation services offered by human service providers.
  • Supporting volunteer driver and aide programs.
  • Acquisition of transportation services by a contract, lease, or other arrangement.
  • Supporting mobility management and coordination programs among public transportation providers and other human service agencies providing transportation.

We invite comment on the projects and activities listed above and how they relate to what is ``beyond the ADA.'' We invite comment on activities related to ADA complementary paratransit services beyond the minimum requirements outlined in 49 CFR part 37. Further, we invite comment regarding the types of projects and services that should be considered for eligibility under New Freedom as they relate to new public transportation beyond the ADA and alternatives to public transportation beyond the ADA.

States and designated recipients may use up to ten percent of their annual apportionment to administer, plan, and provide technical assistance for a funded project. No local share is required for these program administrative funds.

4. Planning and Consultation

Beginning in FY 2007, a recipient of New Freedom funds must certify that projects selected are derived from a locally developed, coordinated public transit-human services transportation plan; and, the plan was developed through a process that included representatives of public, private and non-profit transportation and human service providers; participation by the public; and representatives addressing the needs of persons with disabilities. In FY 2006, the planning partners should at a minimum be consulted about projects and where possible expressions of support should be obtained and documented. Finally, each grant recipient must certify that allocations of the grant to subrecipients are distributed on a fair and equitable basis.

The planning requirement is also a requirement in two additional programs. The Job Access Reverse Commute program (in FY 2006) and the Capital Program for Elderly and People with Disabilities (in FY 2007) will also be required to have a locally developed, coordinated public transit-human services transportation plan. It is anticipated that most areas will develop one consolidated plan for all the programs, which may include separate elements and other human service transportation programs.

5. Period of Availability

While there is no statutory period of availability for New Freedom, FTA is establishing a consistent three-year period of availability for JARC, New Freedom, and the section 5310 program, which includes the year of apportionment plus two additional years. Funds allocated to States under the New Freedom program that remain unobligated at the end of this period will revert to FTA for reapportionment among the States and large UZAs under the New Freedom program.

6. Program Requirements

Grants are subject to the requirements of section 5310 to the extent the Secretary deems appropriate. FTA will not require labor protective arrangements for this program.

7. Transfer of New Freedom funding to Other FTA Programs

States may transfer funds to FTA's section 5307 or section 5311 programs. Funds so transferred must be used for the express purposes designated by the New Freedom Program and must meet all associated requirements. The projects for which the funds are transferred must have been competitively selected and derived from the locally developed, coordinated public transit-human services transportation plan. The purpose of the transfer provision under SAFETEA-LU is for administrative streamlining of grant making, not to supplement the resources available under the urbanized or non-urbanized formula programs. This provision allows the small UZAs to apply for funding directly from FTA, rather than through a statewide grant and allows Tribes to be direct recipients. A State that transfers funds to section 5307 must certify that New Freedom projects being funded have been coordinated with nonprofit providers of service.

FTA has established a new scope code (647) to be used when New Freedom Projects are funded within a 5307 or 5311 grant. Transfer of funds to section 5307 or 5311 is permitted but not required. FTA will also award stand-alone New Freedom grants with the section code 57 in the project number.

O. Alternative Transportation in the Parks and Public Lands Program (49 U.S.C. 5320)

FTA will work with the Department of Interior and other Federal land management agencies to implement this program during FY 2006. No procedures for allocating the funds have yet been established.

P. Alternative Analysis Program (49 U.S.C. 5339)

Alternative Analysis projects are studies conducted as part of the transportation planning process required under sections 5303 and 5304. Beginning in FY2006, funding is provided under section 5339 instead of within the eight percent allowed for projects prior to FD and Construction under TEA-21.

1. Total Allocation

SAFETEA-LU authorizes the following amounts for the Alternative Analysis program for fiscal years 2006-2009.
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In FY 2006 and FY 2007 there are 18 projects authorized for a total of $18,900,000 each year, leaving $6,100,000, which could be allocated to other projects during those years. There are no projects authorized in FY 2008 or FY 2009. The projects authorized in SAFETEA-LU are listed in Table 3. It is important to note that these allocations are subject to be changed by subsequent appropriations acts and additional projects may be earmarked during the appropriations process. Final Alternative Analysis program allocations for FY 2006 will be published after enactment of the FY 2006 Appropriations Act.

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2. Program Requirements

The transportation planning process of Alternative Analysis includes (a) An assessment of a wide range of public transportation alternatives, which will address transportation problems within a corridor or subarea; (b) ample information to enable the Secretary to make the findings of project justification and local financial commitment; (c) the selection of a locally preferred alternative; and (d) the adoption of the locally preferred alternative, which will be part of the long-range transportation plan. The Government's share of the total cost of a project under this section is 80 percent. The funds will be awarded as separate section 5339 grants. The grant requirements under this program will be comparable to those for section 5309 grants.

3. Period of Availability

Funds shall remain available for three fiscal years, which includes the fiscal year the funds are made available or appropriated plus two additional years.

Q. Growing States and High States Density Formula Factors

A new section 5340 is added by SAFETEA-LU to allocate funds to Growing States and High Density States. For this section, the term `State' is defined only to mean the 50 States. For the Growing State portion of section 5340, funds are allocated based on the population forecasts for fifteen years after the date of that census. Forecasts are based on the trend between the most recent decennial census and Census Bureau population estimates for the most current year. Funds allocated to the States are then sub-allocated to urbanized and non-
urbanized areas based on forecast population, where available. If forecasted population data at the urbanized level is not available, funds are allocated to current urbanized and non-urbanized areas on the basis of current population. Funds allocated to urbanized areas are included in their section 5307 apportionment. Funds allocated for non-
urbanized areas are included in the states' section 5311 apportionments.

Funding for the High Density States portion of section 5340 is allocated to the seven States with population densities in excess of 370 persons per square mile, based on 2000 Census information. Each State receives a prorated share of the available funds. To arrive at a State's prorated share the formula requires that a series of mathematical calculations be performed using 2000 Census population, land area, and UZA population data for each State to produce the State's apportionment factor. The steps used to compute a State's apportionment factor are as follows:

  • Step 1: State land area, in square miles, is multiplied by 370.
  • Step 2: the product from step 1 is then multiplied by the State's UZA population.
  • Step 3: the product from step 2 is divided by the State total population.
  • Step 4: the quotient derived from step 3 is the State apportionment factor.

The factors for the seven States are summed and divided by the individual State factor to arrive at the State ratio or percentage. This ratio is multiplied by the available funding to arrive at the State's apportionment of High Density funding. The allocation of a State's High Density apportionment among the UZAs in each State is based on each UZA receiving a proportional share of the State's apportionment according to a UZA's population within the State, as related to the total UZA population for the State. Population, population density and land area data from the most recent Decennial Census is used in the High Density formula.

FTA will publish single urbanized and rural apportionments that show the total amount for 5307 and 5311 programs that includes apportionments these programs formulas together with 5340.

R. Over-the-Road Bus Accessibility Program (Pub. L. 105-85, Section 3038)

The Over-the-Road Bus Accessibility (OTRB) Program authorizes FTA to make grants to operators of over-the-road buses to help finance the incremental capital and training costs of complying with the DOT over-
the-road bus accessibility final rule, 49 CFR part 37, published on September 28, 1998 (63 FR 51670). FTA conducts a national solicitation of applications, and grantees are selected on a competitive basis.

1. Total Allocation

SAFETA-LU authorizes the following amounts for the OTRB program for fiscal years 2006-2009.
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Of the authorized amounts, the following funding is allocable to providers of intercity fixed-route service (75 percent) and to other providers of over-the-road bus services, including local fixed-route service, commuter service, and charter and tour service (25 percent).
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2. Basis for Allocations

FTA allocates the funds appropriated annually among eligible private operators of over-the-road buses that apply in response to a request for proposals published in the Federal Register and announced on Grants.Gov. A separate Federal Register notice will be published later this fall announcing the competitive selection process for funds appropriated in FY 2006.

FTA will screen all applications to determine whether all required eligibility elements are present. An FTA evaluation team will evaluate each application according to the criteria described in the announcement. FTA will notify all applicants, both those selected for funding and those not selected when the competitive selection process is complete. Projects selected for funding will be published in a Federal Register notice. Applicants selected for funding must apply to the FTA regional office for the actual grant award, sign Certifications and

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Assurances, and execute a grant contract before funds can be drawn down.

3. Program Requirements

Projects are competitively selected. The Federal share of the project is 90 percent of net project cost. Program guidance is provided in the Federal Register notice soliciting applications. Assistance is available to operators of buses used substantially or exclusively in intercity, fixed route, over-the-road bus service. Capital projects eligible for funding include projects to add lifts and other accessibility components to new vehicle purchases and to purchase lifts to retrofit existing vehicles. Eligible training costs include developing training materials or providing training for local providers of over-the-road bus services.

4. Period of Availability

Funds are available until expended.

VII. FTA National Planning Emphasis Areas

The FTA has identified a series of national Planning Emphasis Areas (PEAs) to promote as priority themes for consideration in developing the annual work programs for Statewide Planning (State Planning and Research, or SP&R) and Metropolitan Planning (Unified Planning Work Program, or UPWP). The PEAs represent topics in statewide and metropolitan planning that are of strategic national importance and are proposed for consideration by State and local officials as they prepare UPWPs and SP&R programs during the next applicable annual planning program cycle. This year's PEAs broadly promote improved person mobility, while addressing Core Accountabilities of FTA's Strategic Business Plan. The Strategic Business Plan may be viewed at the FTA Web site, http://www.fta.dot.gov/. Because of the wide range in fiscal years across the States, it is understood that full consideration to include the PEAs may not take place until FY 2007. FTA invites comments from all interested parties on the PEAs outlined in the following pages--
both the planning topics that are listed, as well as the specific themes under each topic.

A dedicated program of technical assistance and informational support is being made available to States, MPOs, and public transportation operators to aid in carrying out work activities that support the PEAs. The Transportation Planning Capacity Building Program (TPCB), accessible on-line at http://www.planning.dot.gov/, is an important component of this support, with additional resources also to be made available through the FTA Web site, http://www.fta.dot.gov/. The TPCB is an on-line accessible portfolio of informational reports and services sponsored jointly by FTA and the Federal Highway Administration (FHWA) providing useful guidelines and case studies of innovative practice related to statewide and metropolitan planning. A key element of the TPCB is the Peer Exchange Program, which provides support for sharing experiences among planning practitioners of innovative practices on these PEAs, as well as other planning topics, on request. Requests for information and technical support through the TPCB can be made by accessing the Web site noted above, or by contacting the FTA Region Office or FHWA Division Office representatives in your areas. In addition, training courses that address these PEAs in a variety of planning contexts are available through the National Transit Institute (NTI) and the National Highway Institute (NHI). Please go to the following Web sites: http://www.ntionline.com/ and http://www.nhi.fhwa.dot.gov/.

Finally, FTA is interested in identifying and showcasing examples of effective and innovative practice in Statewide and Metropolitan Planning that support the PEAs. States, MPOs, and public transportation operators are encouraged to forward work scopes and reports documenting their innovative efforts to their respective FTA Region Offices, so they may be reviewed and forwarded to Headquarters for national dissemination through a dedicated webpage to be developed over the coming year.

FTA has identified five key themes as PEAs for the current and upcoming fiscal year: (1) Incorporating Safety and Security in Transportation Planning; (2) Participation of Transit Operators in Metropolitan and Statewide Planning; (3) Coordination of Non-Emergency Human Service Transportation; (4) Planning for Transit Systems Management/Operations to Increase Ridership; and (5) Support Transit Capital Investment Decisions through Effective Systems Planning.

1. Incorporating Safety and Security in Transportation Planning

Since passage of the Intermodal Surface Transportation Efficiency Act (ISTEA) in 1991, and in all subsequent surface transportation authorizing legislation, States and MPOs have been encouraged to incorporate safety and security in their plans, programs, and ongoing planning activities. Most recently, SAFETEA-LU has expanded emphasis on safety and security by de-coupling the two concepts and elevating their status as individual factors in the planning process. Communication and collaboration among safety professionals, emergency service providers, the enforcement community, and transportation planners is essential to successfully integrate safety and security into all stages of transportation planning and decision-making.

Regarding transportation system safety, information describing the tools and strategies associated with the implementation of transportation safety planning within statewide and metropolitan transportation planning processes, including resources targeted to the planning organizations, is available at http://www.tfhrc.gov/pubrds/pubrds.htm.
A training course titled ``Safety Conscious Planning'' is available through NTI (see Web site above) with additional information available from TPCB Web site and FHWA and FTA, as follows: http://www.fhwa.dot.gov/planning/scp/index.htm and http://transit-safety.volpe.dot.gov/.

The types of planning work activities addressed under this emphasis area can include, among others, education, training, and development/
application of analytical processes related to addressing safety and security in planning on a systematic basis, and development and use of approaches to considering safety and security in setting implementation priorities in plans and programs. The ``security'' component of this emphasis area refers to both maintaining the personal security of transportation system operators and users, as well as strategies for system operations that support the ``homeland'' security of localities, regions, States, and the nation. Coordinated approaches to the training of operators, deployment of communications and control technologies, and general coordination of emergency preparedness are among the types of planning activities that fall under this category.

A high-profile theme that spans both security and safety is disaster planning. In particular, areas that are vulnerable to disasters of either man-made or natural origin are encouraged to consider including disaster planning work activities into their SP&Rs and UPWPs. Examples of planning-related disaster planning activities include all stages of emergency preparedness planning--ranging from preparing multimodal evacuation plans before a possible event, to strategies for bringing emergency supplies and relief aid to affected areas after the event. Additional

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information is available at the following Web sites:

2. Participation of Transit Operators in Metropolitan and Statewide Planning

SAFETEA-LU expands the mandate and opportunities for transit operator participation in multimodal transportation decision-making through Statewide and Metropolitan planning. This PEA outlines a set of strategies for realizing the full potential and benefits of multimodal decision-making. A recent FTA publication, Transit at the Table: A Guide to Participation to Metropolitan Decision Making, available online and in hard-copy, provides candid testimonials of the values and strategies for full achievement of ``transit-at-the-table'' by transit and MPO leaders from 25 metropolitan areas across the U.S.

Among the planning activities that support this emphasis area are (a) establishing program, project, and technical advisory committees that include representation and active participation by transit operators, (b) developing and monitoring transportation system performance indicators that include measures that involve public transportation, (c) ensuring that travel forecasting methods are sensitive to policies affecting the full range of modal options and that transit ridership forecasts have been validated and are credible, and (d) using criteria for setting project priorities for inclusion in plans and programs that are mode-neutral.

Training on ways to ensure that planning processes are modally-
balanced and the resulting decisions mode-neutral are available through the National Transit Institute (http://www.ntionline.com/) and the National Highway Institute (http://www.nhi.fhwa.dot.gov/), with additional information available through the Transportation Planning Capacity Building Web site (http://planning.dot.gov/) and the Travel Model Improvement Program (http://tmip.fhwa.dot.gov/). Over the past two years, the TPCB has sponsored a number of transit-at-the-table peer exchange workshops, with the results posted on that Web site. The ``Transit at the Table'' report is available at http://www.planning.dot.gov/Documents/tat.htm.

3. Coordination of Non-Emergency Human Service Transportation

Following the theme of Executive Order 13330, Human Service Transportation Coordination, SAFETEA-LU provides expanded program authority and funding opportunities to provide transit service to individuals with job access and specialized transportation needs. However, these programs, 49 U.S.C. 5310 (Special Needs of Elderly Individuals and Individuals with Disabilities), 49 U.S.C. 5316 (Job Access and Reverse Commute), and 49 U.S.C. 5317 (New Freedom) all require an extensive coordination among DOT and non-DOT-funded services, including preparation of a locally-developed coordinated human service-transportation plan as the basis for project-level funding decisions. The plan has to be developed by local area representatives of public, private, and nonprofit transportation human services providers, as well as involve participation by the public, including older adults, people with disabilities, and individuals with lower incomes. SAFETEA-LU further outlines that project ``competition'' for funding awards at the local level should be coordinated with the MPO.

Support of the emphasis area could involve a wide range of work activities in Statewide and metropolitan planning, including forming and hosting meetings of a committee of non-emergency service providers, assemblage of a base-year ridership profile of service users and forecasting future usage, and incorporating these programs into the public involvement programs of States and MPOs. United We Ride, an initiative of the Coordinating Council on Access and Mobility has developed a number of tools and strategies for building coordinated human service transportation systems across programs and funding streams. Additional information resources are available at the following Web sites:

4. Planning for Transit Systems Management/Operations to Increase Ridership

A regionally coordinated, strategic approach to managing and operating transportation systems can yield dramatic improvements in systems productivity and service cost effectiveness. With regard to transit, a key criterion of operational effectiveness is the number of passenger miles traveled. FTA's Strategic Business Plan has a goal calling for an annual increase in passenger miles, discounted for employment. The ability to accomplish this is tied closely to the effective management and operation of transit systems--individually, as well as in within a regional context of multimodal systems management and operations. In addition, transit operational strategies such as fare policies, service characteristics (e.g. headways, transfers, frequency of stops), marketing and public awareness/information, and overall facilities maintenance on services and schedules, have a major impact on system ridership.

Work activities in Statewide and Metropolitan planning to address this emphasis area include such efforts as: (a) Convene a system operators coordinating committee to identify issues, share solutions, and establish an ongoing framework for coordination, (b) develop analytical tools and expertise in assessing the impacts of operational strategies, both in conjunction with, and as alternatives to, capital investments, (c) facilitate improved understanding and deployment of advanced technologies to improve the operational efficiency of systems, and (d) improve the tracking, analysis, and use of operational performance data in transportation plan and program development.

FTA has developed an extensive body of information and guidance to assist transit operators in developing strategies that increase use of their systems. The guidance includes technical assistance such as training courses, research studies, and proceedings from conferences that transit operators can use in developing their ridership growth strategies. This guidance is summarized in the report, ``Ridership Guidance Quick Study,'' which is posted at Ridership.

Additional information on achieving ridership growth is available at the following Web sites:

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5. Support Transit Capital Investment Decisions Through Effective Systems Planning

The information, processes, and decisions of metropolitan systems planning lay the foundation for, and have direct impacts upon, corridor-focused project planning and subsequent stages of project development. There is a strong relationship between systems planning activities, more refined corridor analyses in Alternatives Analysis (or ``AA.'' an FTA requirement for advancing New Starts projects), and their impact on subsequent project development--all within the context of metropolitan planning and decision-making. In systems planning, regional priorities among corridors of need are identified, as well as causes of the corridors' problems and a reasonable range of possible solutions. An AA investigates the range of possible modal solutions within individual corridors in much greater detail, concluding with a ``Locally Preferred Alternative'' (LPA). That LPA, in turn, goes to the Metropolitan Planning Organization (MPO) for adoption into the long-
range transportation plan and is, ultimately, programmed in the Transportation Improvement Program. And, as the work of systems planning is carried forward into more focused planning at the corridor level, it becomes readily apparent that the quality of work performed in systems planning sets the foundation--and the quality of that foundation--for subsequent, more detailed planning.

Within systems planning, three planning activities have been found to be the most challenging and, if not performed effectively, to have the most significant impact on the quality and credibility of major transit investment proposals as they advance into project development. These three systems planning topics are: (a) Data, Technical Tools, & Analysis; (b) Regional Needs Identification & Corridor Prioritization; and (c) Financial Planning.

(a) Data, Technical Tools, & Analysis

There is a long and ever-expanding list of planning activities to improve the technical aspects of systems planning. These include ongoing collection of systems usage and performance to understand current travel behavior (e.g. onboard transit surveys and monitoring travel--by mode--that crosses a strategically picked network of screen-
lines), training for staff to improve their technical skills and expertise. Frequent validation checks should be performed on the travel forecasting models to confirm their reliability for use in assessing the travel implications of policy and network alternatives. Also, as improvements to MPOs' models are made during corridor-level AA studies, those refinements should be cycled back to the MPOs for use in their models.

FTA staff and contractors have identified a wide range of problems with MPO travel demand forecasting models, particularly in locales with no prior experience in conducting AA studies. The ``sponsors'' of candidate projects for New Starts funding (49 U.S.C. 5309) will want to work with FTA staff before beginning the AA Study to examine model inputs, policy variables and assumptions, and model outputs for reasonableness.

Informational resources available to State/local planners include:

  • National Highway Institute (http://www.nhi.fhwa.dot.gov/), which offers the course Introduction to Travel Demand Forecasting.
  • National Transit Institute (http://www.ntionline.com/), which offers the advanced course Multimodal Travel Forecasting.
  • Travel Model Improvement Program (http://tmip.fhwa.dot.gov/), a joint FTA/FHWA/EPA program to support local transportation planning agencies and improve their forecasting abilities.
(b) Regional Needs Identification & Corridor Prioritization

Goals and objectives for the transportation system are driven by public input and set by local policy makers and elected officials. These should be based on needs and clearly set forth in the long-range transportation plan. Furthermore, the goals and objectives should drive not only performance measures for the existing system, but also evaluation criteria for any new projects and programs to assist in decision making. If a major transit investment is to be considered in a corridor for study and Federal funding assistance is anticipated for the investment, then project sponsors may want to include FTA's New Starts criteria among the locally developed evaluation criteria.

Systems planning involves identifying corridors with needs in accordance with a set of performance measures and establishing priorities among the corridors for further analysis. Valid, current, and comprehensive data are crucial in understanding transportation problems in the region; they also support rational decision making in formulating solutions. It is important that the planning documents and studies clearly articulate the problem(s) that are to be addressed. This will lead to the discovery the root causes of the problem(s). Knowledge of problems and causes becomes the basis for a project-level ``Purpose and Need'' statement in federal environmental review documentation. The identification of regional transportation problems and their causes through data collection, analysis, and forecasting is the basis for ``telling the story'' of the applicant's local conditions. Good systems planning will help to ``make the case'' for funding potential major transit investments.

Links to informational resources on this topic include:

(c) Financial Planning

Effective systems planning depends upon sound, defensible financial planning. Otherwise, the plans will always remain just plans and what is implemented will not reflect the vision expressed by decision makers through the metropolitan planning process. Good financial planning, in turn, depends upon credible assumptions, for revenues, expenses, inflation, and realistic project implementation schedules. For transit service and projects, in particular, the concept of maintenance first must take precedence in systems planning. Recapitalization and the ongoing expenses of operating and maintaining (O&M) the existing system over the long-term must be considered. The applicant or proposed project sponsor should be able to demonstrate that the existing transit system can be maintained and operated at current levels of service for the next 20 years. Development of a robust cost model for transit O&M expenses can prove invaluable in systems planning. For new projects, careful estimation of capital and operating costs should also include risk management analysis to challenge assumptions behind the estimates and consider a range of cost impacts should assumptions not hold true.

Additional guidance is available, as follows:

VIII. FTA Policy and Procedures for FY 2006 Grants

A. Automatic Pre-Award Authority To Incur Project Costs

This section includes some changes to the automatic pre-award authority published in previous Notices. Pre-award authority for capital projects beyond design and environmental work is more limited than before. The conditions under which pre-award authority may be used for real property acquisition are also clarified.

While we provide pre-award authority for many projects, we do not recommend that first-time grant recipients utilize the automatic pre-
award authority to incur expenses before the grant is actually awarded by FTA. As a new grantee, it is easy to misunderstand pre-award authority conditions and not be aware of all of the applicable FTA requirements that must be met in order to be reimbursed for project expenditures incurred in advance of grant award. FTA programs have specific statutory requirements that are often different from those for other Federal grant programs with which new grantees may be familiar. If funds are expended for an ineligible project or activity, FTA will be unable to reimburse the project sponsor.

1. Policy

FTA provides blanket, or automatic, pre-award authority in certain program areas described below. This pre-award authority allows grantees to incur certain project costs prior to grant approval and retain their eligibility for subsequent reimbursement after grant approval. The grantee assumes all risk and is responsible for ensuring that all conditions are met to retain eligibility. This automatic pre-award spending authority, when triggered, permits a grantee to incur costs on an eligible transit capital or planning project without prejudice to possible future Federal participation in the cost of the project or projects. Pre-award authority for design and environmental work on the project is triggered by the authorization of formula funds or appropriation of funds for discretionary projects and publication of those projects in FTA's annual Federal Register Notice of apportionments and allocations. Following authorization of formula funds or appropriation and publication of discretionary projects, pre-
award authority for other capital projects including property acquisition, demolition, construction, and acquisition of vehicles, equipment, or construction materials is triggered by completion of the environmental review process with FTA's signing of an environmental Record of Decision (ROD), Finding of No Significant Impact (FONSI), or categorical exclusion (CE) determination. Prior to exercising pre-award authority, grantees must comply with the conditions and Federal requirements outlined in paragraphs 2 and 3 below. Failure to do so will render an otherwise eligible project ineligible for FTA financial assistance. In addition, prior to incurring costs, grantees are strongly encouraged to consult with the appropriate FTA regional office regarding the eligibility of the project for future FTA funds and the applicability of the conditions and Federal requirements.

FTA previously extended pre-award authority to all formula funds and flexible funds apportioned during from Fiscal Years 1998 through 2006. In this notice, FTA is extending this pre-award authority for formula funds and flexible funds that will be appropriated through FY 2009 under SAFETEA-LU, but with modifications. Pre-award authority for operating and planning projects under the formula grant programs is not limited to the authorization period. In addition, automatic pre-award authority for section 5303 and 5304 is extended through FY 2009.

Pre-award authority does not apply to the section 5309 Capital Investment Bus and Bus-Related Facilities and Clean Fuels program high priority project designations or any other transit discretionary projects designated in SAFETEA-LU and published in Tables 4 and 5 of this notice. These authorizations are subject to change in future appropriations acts. In fiscal years 2006-2009, after Congress appropriates funds for these and other discretionary projects and the allocations are published in an FTA notice of apportionments and allocations, pre-award authority will be available for those projects and projects for which funds were appropriated in prior years and published in previous notices, except that the triggers for pre-award authority have been changed. For such section 5309 Capital Investment Bus and Bus-Related, Clean Fuels Program, or other transit capital discretionary projects, the date that costs may be incurred is: (1) for design and environmental review, the date that the appropriation bill which funds the project was enacted; and (2) for property acquisition, demolition, construction, and acquisition of vehicles, equipment, or construction materials, the date that FTA signs the document (ROD, FONSI, or CE determination) that completes the environmental review process required by the National Environmental Policy Act (NEPA) and its implementing regulations. The growing prevalence of new grantees unfamiliar with Federal and FTA requirements has necessitated this change in the pre-award trigger to ensure FTA's continued ability to comply with NEPA and related environmental laws. Because FTA does not sign a final NEPA document until MPO and statewide planning requirements have been satisfied, this new trigger for pre-award will ensure compliance with both planning and environmental requirements prior to irreversible action by the grantee. In previous notices FTA extended pre-award authority to section 330 projects and those surface transportation projects commonly referred to as section 115 projects administered by FTA, for which amounts were provided in the Consolidated Appropriations Act, 2004 and section 117 projects in the 2005 Appropriations Act. The same conditions described for bus projects apply to these projects. We strongly encourage any prospective applicant that does not have a relationship with FTA to review Federal grant requirements with the FTA regional office before incurring costs.

Blanket pre-award authority does not apply to section 5309 Capital Investment New Starts funds. Specific instances of pre-award authority for Capital Investment New Starts projects are described in paragraph 4 below. Pre-award authority does not apply to Capital Investment Bus and Bus-Related or Clean Fuels projects for which funding has been authorized but not yet appropriated. Before an applicant may incur costs for Capital Investment New Starts projects, Bus and Bus-Related projects, or any other projects not yet published in a notice of apportionments and allocations, it must first obtain a written Letter of No Prejudice (LONP) from FTA. To obtain an LONP, a grantee must submit a written request accompanied by adequate information and justification to the appropriate FTA regional office, as described below.

2. Conditions

The conditions under which pre-award authority may be utilized are specified below:

  • (a) Pre-award authority is not a legal or implied commitment that the project(s) will be approved for FTA assistance or that FTA will obligate Federal funds. Furthermore, it is not a legal or implied commitment that all

    [[Page 71975]]

    items undertaken by the applicant will be eligible for inclusion in the project(s).

  • (b) All FTA statutory, procedural, and contractual requirements must be met.

  • (c) No action will be taken by the grantee that prejudices the legal and administrative findings that the Federal Transit Administrator must make in order to approve a project.

  • (d) Local funds expended by the grantee pursuant to and after the date of the pre-award authority will be eligible for credit toward local match or reimbursement if FTA later makes a grant for the project(s) or project amendment(s). Local funds expended by the grantee prior to the date of the pre-award authority will not be eligible for credit toward local match or reimbursement. Furthermore, the expenditure of local funds on activities such as land acquisition, demolition, or construction prior to the date of pre-award authority for those activities (i.e., the completion of the NEPA process) would compromise FTA's ability to comply with Federal environmental laws and may render the project ineligible for FTA funding.

  • (e) The Federal amount of any future FTA assistance awarded to the grantee for the project will be determined on the basis of the overall scope of activities and the prevailing statutory provisions with respect to the Federal/local match ratio at the time the funds are obligated.

  • (f) For funds to which the pre-award authority applies, the authority expires with the lapsing of the fiscal year funds.

  • (g) When a grant for the project is subsequently awarded, the Financial Status Report, in TEAM-Web, must indicate the use of pre-
    award authority.

3. Environmental, Planning, and Other Federal Requirements

All Federal grant requirements must be met at the appropriate time for the project to remain eligible for Federal funding. The growth of the Federal transit program has resulted in a growing number of inexperienced grantees who make compliance with Federal planning and environmental laws increasingly challenging. FTA has therefore modified its approach to pre-award authority to use the completion of the NEPA process, which has as a prerequisite the completion of planning and air quality requirements, as the trigger for pre-award authority for all activities except design and environmental review.

The requirement that a project be included in a locally adopted metropolitan transportation improvement program and Federally-approved statewide transportation improvement program (23 CFR part 450) must be satisfied before the grantee may advance the project beyond planning and preliminary design with non-Federal funds under pre-award authority. The conformity requirements of the Clean Air Act, 40 CFR part 93, if applicable, must also be fully met before the project may be advanced into implementation under pre-award authority with non-
Federal funds. Compliance with NEPA and other environmental laws and executive orders (e.g., protection of parklands, wetlands, and historic properties) must be completed before State or local funds are spent on implementation activities, such as site preparation, construction, and acquisition, for a project that is expected to be subsequently funded with FTA funds. The grantee may not advance the project beyond planning and preliminary design before FTA has determined the project to be a categorical exclusion, or has issued a finding of no significant impact (FONSI) or an environmental record of decision (ROD), in accordance with FTA environmental regulations, 23 CFR part 771. For planning projects, the project must be included in a locally-approved Planning Work Program that has been coordinated with the State.

In addition, Federal procurement procedures, as well as the whole range of applicable Federal requirements (e.g., Buy America, Davis-
Bacon Act, Disadvantaged Business Enterprise), must be followed for projects in which Federal funding will be sought in the future. Failure to follow any such requirements could make the project ineligible for Federal funding. In short, this increased administrative flexibility requires a grantee to make certain that no Federal requirements are circumvented through the use of pre-award authority. If a grantee has questions or concerns regarding the environmental requirements, or any other Federal requirements that must be met before incurring costs, it should contact the appropriate regional office.

4. Pre-Award Authority for New Starts Projects
(a) Preliminary Engineering and Final Design

Projects proposed for section 5309 New Starts funds are required to follow a Federally defined New Starts project development process. This New Starts process includes, among other things, FTA approval of the entry of the project into PE and into FD. In accordance with section 5309(d), FTA considers the merits of the project, the strength of its financial plan, and its readiness to enter the next phase in deciding whether or not to approve entry into PE or FD. Upon FTA approval to enter PE, FTA extends pre-award authority to incur costs for PE activities. Upon FTA approval to enter FD, FTA extends pre-award authority to incur costs for FD activities. The pre-award authority for each phase is automatic upon FTA's signing of a letter to the project sponsor approving entry into that phase. PE and FD are defined in the New Starts regulation entitled Major Capital Investment Projects, found at 49 CFR part 611.

(b) Real Property Acquisition Activities

FTA extends automatic pre-award authority for the acquisition of real property and real property rights for a New Starts project upon completion of the NEPA process for that project. The NEPA process is completed when FTA signs an environmental Record of Decision (ROD) or Finding of No Significant Impact (FONSI), or makes a Categorical Exclusion (CE) determination. With the limitations and caveats described below, real estate acquisition for a New Starts project may commence, at the project sponsor's risk, upon completion of the NEPA process.

For FTA-assisted projects, any acquisition of real property or real property rights must be conducted in accordance with the requirements of the Uniform Relocation Assistance and Real Property Acquisition Policies Act (URA) and its implementing regulations, 49 CFR part 24. This pre-award authority is strictly limited to costs incurred: (i) to acquire real property and real property rights in accordance with the URA regulation, and (ii) to provide relocation assistance in accordance with the URA regulation. This pre-award authority is limited to the acquisition of real property and real property rights that are explicitly identified in the final environmental impact statement (FEIS), environmental assessment (EA), or CE document, as needed for the selected alternative that is the subject of the FTA-signed ROD or FONSI, or CE determination. This pre-award authority does not cover site preparation, demolition, or any other activity that is not strictly necessary to comply with the URA, with one exception. That exception is when a building that has been acquired, has been emptied of its occupants, and awaits demolition poses a potential fire-safety hazard or other hazard to the community in which it is located, or is susceptible to reoccupation by vagrants, demolition of the building is also covered by this pre-award authority upon FTA's written agreement that the adverse condition exists.

[[Page 71976]]

Pre-award authority for property acquisition is also provided when FTA makes a CE determination for a protective buy or hardship acquisition in accordance with 23 CFR 771.117(d)(12), and when FTA makes a CE determination for the acquisition of a pre-existing railroad right-of-way in accordance with 49 U.S.C. 5324(c). When a tiered environmental review in accordance with 23 CFR 771.111(g) is being used, pre-award authority is NOT provided upon completion of the first-
tier environmental document except when the Tier-1 ROD or FONSI signed by FTA explicitly provides such pre-award authority for a particular identified acquisition.

FTA's rationale for providing this pre-award authority was described in the FY 2003 Apportionments and Allocations Notice published in the Federal Register on March 12, 2003, (68 FR 1106 et seq.). The FY 2003 Notice may be found on the FTA Web site at http://www.fta.dot.gov/library/legal/federalregister/2003/fr31203.pdf.
Project sponsors should use pre-award authority for real property acquisition and relocation assistance very carefully, with a clear understanding that it does not constitute a funding commitment by FTA.

(c) National Environmental Policy Act (NEPA) Activities

NEPA requires that major projects proposed for FTA funding assistance be subjected to a public and interagency review of the need for the project, its environmental and community impacts, and alternatives to avoid and reduce adverse impacts. Projects of more limited scope also need a level of environmental review, either to support an FTA finding of no significant impact (FONSI) or to demonstrate that the action is categorically excluded from the more rigorous level of NEPA review.

FTA's regulation entitled Environmental Impact and Related Procedures at 23 CFR part 771 states that the costs incurred by a grant applicant for the preparation of environmental documents requested by FTA are eligible for FTA financial assistance (23 CFR 771.105(e)). Accordingly, FTA extends automatic pre-award authority for costs incurred to comply with NEPA regulations and to conduct NEPA-related activities for a proposed New Starts project, effective as of the date of the Federal approval of the relevant STIP or STIP amendment that includes the project or any phase of the project. NEPA-related activities include, but are not limited to, public involvement activities, historic preservation reviews, section 4(f) evaluations, wetlands evaluations, endangered species consultations, and biological assessments. This pre-award authority is strictly limited to costs incurred to conduct the NEPA process, and to prepare environmental, historic preservation and related documents. It does not cover PE activities beyond those necessary for NEPA compliance. As with any pre-
award authority, FTA reimbursement for costs incurred is not guaranteed.

(d) Other New Starts Activities Requiring Letter of No Prejudice (LONP)

Except as discussed in paragraphs (a) through (c) above, a grant applicant must obtain a written LONP from FTA before incurring costs for any activity expected to be funded by New Start funds not yet granted. To obtain an LONP, an applicant must submit a written request accompanied by adequate information and justification to the appropriate FTA regional office, as described in B below.

B. Letter of No Prejudice (LONP) Policy

1. Policy

LONP authority allows an applicant to incur costs on a project utilizing non-Federal resources, with the understanding that the costs incurred subsequent to the issuance of the LONP may be reimbursable as eligible expenses or eligible for credit toward the local match should FTA approve the project at a later date. LONPs are applicable to projects and project activities not covered by automatic pre-award authority. The majority of LONPs will be for section 5309 New Starts funds not covered under a full funding grant agreement, or for section 5309 Bus and Bus-Related funds not yet appropriated by Congress. At the end of an authorization period, LONPs may be issued for formula funds beyond the life of the current authorization or FTA's extension of automatic pre-award authority.

2. Conditions and Federal Requirements

The conditions for pre-award authority specified in section VIII A2 above apply to all LONPs. The Environmental, Planning and Other Federal Requirements described in section VIII A3, also apply to all LONPs. Because project implementation activities may not be initiated prior to NEPA completion, FTA will normally not issue an LONP for such activities until the NEPA process has been completed with a ROD, FONSI, or Categorical Exclusion determination.

3. Request for LONP

Before incurring costs for a project not covered by automatic pre-
award authority, the project sponsor must first submit a written request for an LONP, accompanied by adequate information and justification, to the appropriate regional office and obtain written approval. As a prerequisite to FTA approval of an LONP for a New Starts project, FTA will require project sponsors to demonstrate project worthiness and readiness that establish the project as a candidate for an FFGA. Projects will be assessed based upon the criteria considered in the New Start evaluation process. Specifically, upon the request for an LONP, the applicant shall provide sufficient information to allow FTA to consider the following items:

  • (a) Description of the activities to be covered by the LONP.
  • (b) Justification for advancing the identified activities.
  • (c) Data that indicates that the project will maintain its ability to receive a rating of ``medium'', or better and that its cost-
    effectiveness rating will be ``medium'' or better, unless such project has been specifically exempt from such a requirement.
  • (d) Allocated level of risk and contingency for the activity requested.
  • (e) Status of procurement progress, including, if appropriate, submittal of bids for the activities covered by the LONP.
  • (f) Strength of the capital and operating financial plan for the New Starts project and the future transit system.
  • (g) Adequacy of the Project Management Plan.
  • (h) Resolution of any readiness issues that would affect the project, such as land acquisition and technical capacity to carry out the project.

C. FTA FY 2006 Annual List of Certifications and Assurances

The FTA ``Fiscal 2006 Annual List of Certifications and Assurances'' will incorporate new or changed requirements due to SAFETEA-LU. The full text of the Fiscal Year 2006 Certifications and Assurances was published in the Federal Register on November 15, 2005, and is available on the FTA Web site and in TEAM-WEB. The FY 2006 Certifications and Assurances must be used for all grants made in FY 2006, including obligation of carryover.

D. FHWA Funds Used for Transit Purposes

SAFETEA-LU continues provisions in the Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA) and TEA-21 that expanded modal choice in transportation funding by including

[[Page 71977]]

substantial flexibility to transfer funds between FTA and FHWA program funding categories.

1. Transfer Process

The process for transferring flexible formula funds between FTA and FHWA programs is described below. For information on the process or the transfer of funds between FTA and FHWA planning programs refer to section VIII E.

Transfer from FHWA to FTA. FHWA funds designated for use in transit capital projects must be derived from the metropolitan and statewide planning and programming process, and must be included in an approved STIP before the funds can be transferred. By letter, the State DOT requests the FHWA Division Office to transfer highway funds for a transit project. The letter should specify the project, amount to be transferred, apportionment year, State, urbanized area, Federal aid apportionment category (i.e., Surface Transportation Program (STP), Congestion Mitigation and Air Quality (CMAQ), Interstate Substitute, or congressional earmark), indication of the intended FTA formula program (i.e., section 5307, 5311 or 5310), and should include a description of the project as contained in the STIP.

The FHWA Division Office confirms that the apportionment amount is available for transfer and concurs in the transfer, by letter to the State DOT and FTA. The FHWA Office of Budget and Finance then transfers obligation authority and an equal amount of cash to FTA. All FHWA CMAQ, STP, and certain Congressionally earmarked funds for transit projects in the Appropriations Act or Conference Report will be transferred to one of the three FTA formula programs (i.e. Urbanized Area Formula (section 5307), Nonurbanized Area Formula (section 5311) or Elderly and Persons with Disabilities (section 5310).

The FTA grantee's application for the project must specify which program the funds will be used for, and the application must be prepared in accordance with the requirements and procedures governing that program. Upon review and approval of the grantee's application, FTA obligates funds for the project.

Transferred funds are treated as FTA formula funds, but are assigned a distinct identifying code for tracking purposes. The funds may be used for any capital purpose eligible under the FTA formula program to which they are transferred and, in the case of CMAQ, for certain operating costs. FTA and FHWA have issued guidance on project eligibility under the CMAQ program in a Notice at 65 FR 9040 et seq. (February 23, 2000). In accordance with 23 U.S.C. 104(k), all FTA requirements except local share are applicable to transferred funds; FHWA local share requirements apply to funds transferred from FHWA to FTA. Transferred funds should be combined with regular FTA funds in a single annual grant application.

In the event that transferred funds are not obligated for the intended purpose within the period of availability of the program to which they were transferred, they become available to the Governor for any eligible capital transit project.

Transfers from FTA to FHWA. The Metropolitan Planning Organization (MPO) submits a written request to the FTA regional office for a transfer of FTA section 5307 formula funds (apportioned to a UZA 200,000 and over in population) to FHWA based on approved use of the funds for highway purposes, as contained in the Governor's approved State Transportation Improvement Program. The MPO must certify that: (1) The funds are not needed for capital investments required by the Americans with Disabilities Act; (2) notice and opportunity for comment and appeal has been provided to affected transit providers; and (3) local funds used for non-Federal match are eligible to provide assistance for either highway or transit projects. The FTA Regional Administrator reviews and concurs in the request, then forwards the approval in written format to FTA Headquarters, where a reduction equal to the dollar amount being transferred to FHWA is made to the grantee's Urbanized Area Formula Program apportionment.

2. Matching Share for FHWA Transfers

The provisions of Title 23 U.S.C. regarding the non-Federal share apply to Title 23 funds used for transit projects. Thus, FHWA funds transferred to FTA retain the same matching share that the funds would have if used for highway purposes and administered by FHWA.

There are three instances in which a Federal share higher than 80 percent would be permitted. First, in States with large areas of Indian and certain public domain lands and national forests, parks and monuments, the local share for highway projects is determined by a sliding scale rate, calculated based on the percentage of public lands within that State. This sliding scale, which permits a greater Federal share, but not to exceed 95 percent, is applicable to transfers used to fund transit projects in these public land States. FHWA develops the sliding scale matching ratios for the increased Federal share.

Second, commuter carpooling and vanpooling projects and transit safety projects using FHWA transfers administered by FTA may retain the same 100 percent Federal share that would be allowed for ride-sharing or safety projects administered by FHWA.

The third instance is the 100 percent Federally-funded safety projects; however, these are subject to a nationwide 10 percent program limitation.

E. Consolidated Planning Grants

Since FY 1997, FTA and FHWA have offered States the option of participating in a pilot Consolidated Planning Grant (CPG) program. This streamlined fund drawdown process eliminates the need to monitor individual fund sources, if several have been used, and ensures that the oldest funds will always be used first.

Under a CPG administered by FTA, States can report metropolitan planning expenditures (to comply with the Single Audit Act) for both FTA and FHWA under the Catalogue of Federal Domestic Assistance number for FTA's Metropolitan Planning Program. Additionally, for States with an FHWA Metropolitan Planning (PL) fund-matching ratio greater than 80 percent, the State (through FTA) can request a waiver of the 20 percent local share requirement in order that all FTA funds used for metropolitan planning in a CPG can be granted at the higher FHWA rate. For some States, this Federal match rate can exceed 90 percent. In FY 2005, the CPG program was expanded to allow the transfer of FTA planning funds to FHWA in addition to the current process whereby FHWA funds for planning are transferred to FTA. For planning projects funded through a CPG, the State DOT requests the transfer of funds in a letter to the FHWA Division Office (if transferring funds to FTA) or to the FTA regional office (if transferring funds to FHWA).

F. Grant Application Procedures

Grantees must provide a Dun and Bradstreet (D&B) Data Universal Numbering System (DUNS) number for inclusion in all applications for a Federal grant or cooperative agreement submitted on or after October 1, 2003. The DUNS number should be entered into the grantee profile in TEAM-Web. Additional information about this and other Federal grant streamlining initiatives mandated by the Federal Financial Assistance Management Improvement Act of 1999 (Pub. L. 106-107) can be accessed on OMB's Web site at http://www.whitehouse.gov/omb/grants/reform.html.

[[Page 71978]]

All applications for FTA funds should be submitted to the appropriate FTA regional office. FTA utilizes TEAM-Web, an Internet-
accessible electronic grant application system, and all applications are filed electronically. FTA has provided limited exceptions to the requirement for electronic filing of applications.

In FY 2006, FTA is committed to ensuring that the average number of days to process an FTA grant is 36 days, or fewer, after receipt of a completed application by the appropriate regional office. In order for an application to be considered complete and for FTA to assign a grant number, enabling submission in TEAM-Web, the following requirements must be met:

  • The project is listed in a currently approved Transportation Improvement Program (TIP); Statewide Transportation Improvement Program (STIP), or Unified Planning Work Program (UPWP).
  • All eligibility issues have been resolved.
  • Required environmental findings have been made.
  • The project budget's Activity Line Items (ALI), scope, and project description meet FTA requirements.
  • Local share funding source(s) have been identified.
  • The grantee's required Civil Rights submissions are current.
  • Certifications and assurances are properly submitted.
  • Funding is available, including any flexible funds included in the budget.
  • For projects involving new construction (using at least $100 million in New Starts or formula funds), FTA engineering staff has reviewed the project management plan and given approval.
  • When required for grants related to New Starts projects, PE and/or FD has been approved.
  • Milestone information is complete, or FTA determines that milestone information can be finalized before the grant is ready for award.

Before FTA can award grants for discretionary projects and activities designated by Congress, notification must be given to members of Congress, and in the case of awards greater than $1 million, to the House and Senate authorizing and appropriations committees.

Other important issues that impact FTA grant processing activities are discussed below.

1. Change in Budget Structure

Because SAFETEA-LU restructured FTA's accounts from all general funded accounts to one solely trust funded account and three general funded accounts, we are not able to mix funds from prior years in the same grant with funds that will be appropriated in FY 2006 and beyond (except for New Starts and research grants). Previously all programs were funded approximately 80 percent trust funds from the Mass Transit Account (MTA) of the Highway Trust Fund and 20 percent General Funds from the U.S. Treasury. The trust funds were transferred into the general funded accounts at the beginning of the year. Under SAFETEA-LU most programs are funded entirely from trust funds derived from the Mass Transit Account, while the New Starts and Research programs are funded with general funds. Carryover FY 2005 and prior funds currently available for obligation as well as FY 2006 funds, when they become available, may be included in an amendment to an existing grant for New Starts and research grants.

For formula programs funded solely from trust funds beginning in FY 2006, grantees must initiate a new grant to obligate FY 2006 funds. Grant amendments cannot be made to add FY 2006 and later year funds to a grant that includes FY 2005 or prior funds. Obligations of FY 2005 and prior year carryover funds must be made in the original program accounts established under TEA-21 (either as an amendment to an existing grant or as a new grant) and cannot be combined with funds appropriated in FY 2006 or later. Grantees will, however, be able to amend the new grants established with FY 2006 funds to add funds made available after FY 2006. We regret any inconvenience this accounting change may cause as we implement new statutory requirements under SAFETEA-LU. We encourage grantees to spend down and close out old grants as quickly as possible to minimize the inconvenience.

2. Grant Budgets--SCOPE and ALI Codes

FTA uses the SCOPE and Activity Line Item (ALI) Codes in the grant budgets to track program trends, to report to Congress, and to respond to requests from the Inspector General and the Government Accountability Office (GAO), as well as to manage grants. The accuracy of the data is dependent on the careful and correct use of codes. We have revised the SCOPE and ALI table to include new codes for the newly eligible capital items, to better track certain expenditures, and to accommodate the new programs. We encourage grantees to review the table before selecting codes from the drop-down menus in TEAM-WEB while creating a grant budget. Additional information about how to use the SCOPE and ALI codes to accurately code budgets will be added to the resources available through TEAM-WEB.

3. Earmark Tracking

FTA is implementing new procedures for relating grants to earmarks. Each earmark published in the Federal Register will have a unique identifier associated with it. Tables of earmarks will also be established in TEAM. When applying for a grant using funding designated by Congress, grantees will be asked to identify the amount of funding associated with specific earmarks used in the grant. Further instructions will be posted on the TEAM-WEB site and training will be provided. The carryover tables in this Notice include the new identifiers.

4. New Freedom and JARC--Administering Agency

Before the first grant application to FTA is submitted, the Governor must designate the state agency or agencies charged with administering the New Freedom and JARC formula programs. In large urbanized areas with more than one designated recipient or transit operator, supplemental agreements may be necessary.

5. Payments

Once a grant has been awarded and executed, requests for payment can be processed. To process payments FTA uses ECHO-Web, an Internet accessible system that provides grantees the capability to submit payment requests on-line, as well as receive user-IDs and passwords via e-mail. New applicants should contact the appropriate FTA regional office to obtain and submit the registration package necessary for set-
up under ECHO-Web.

6. Oversight

FTA conducts periodic oversight reviews to assess grantee compliance with Federal requirements. Each UZA grantee is reviewed every three years (a triennial review). States are reviewed periodically for their management of the section 5310 and 5311 programs. Other more detailed reviews are scheduled based on an annual grantee risk assessment. FTA will develop appropriate oversight procedures for the new programs authorized by SAFETEA-LU.

7. Technical Assistance

FTA headquarters and regional staff will be pleased to answer your

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questions and provide any technical assistance you may need to apply for FTA program funds and manage the grants you receive. This notice and the program guidance circulars previously identified in this document may be accessed via the FTA Web site at http://www.fta.dot.gov/.

In addition, copies of the following circulars and other useful information are available on the FTA Website and may be obtained from FTA regional offices: 4220.1E, Third Party Contracting Requirements, dated June 19, 2003; and C5010.1C, Grant Management Guidelines, dated October 1, 1998. The FY 2006 Annual List of Certifications and Assurances and Master Agreement are also posted on the FTA Web site. Other documents on the FTA Web site of particular interest to public transit providers and others include the annual Statistical Summaries of FTA Grant Assistance Programs and the NTD Profiles. The DOT final rule on ``Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs,'' which was effective July 16, 2003, can be found on the Department's Web site at http://osdbu.dot.gov/business/DBE/49cfrpart26_final_rule.html.

Issued on: November 21, 2005.
David B. Horner,
Acting Deputy Administrator.

Appendix A

FTA Regional Offices

Richard H. Doyle, Regional Administrator, Region 1-Boston Kendall Square, 55 Broadway, Suite 920, Cambridge, MA 02142-1093, Tel. 617 494-2055. States served: Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont.

Letitia Thompson, Regional Administrator, Region 2-New York, One Bowling Green, Room 429, New York, NY 10004-1415, Tel. No. 212 668-
2170. States served: New Jersey, New York, and the Virgin Islands.

Susan Borinsky, Regional Administrator, Region 3-Philadelphia, 1760 Market Street, Suite 500, Philadelphia, PA 19103-4124, Tel. 215 656-
7100. States served: Delaware, Maryland, Pennsylvania, Virginia, West Virginia, and District of Columbia.

Yvette Taylor, Regional Administrator, Region 4-Atlanta, Atlanta Federal Center, Suite 17T50, 61 Forsyth Street SW., Atlanta, GA 30303, Tel. 404 562-3500. States served: Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, Puerto Rico, South Carolina, and Tennessee.

Don Gismondi, Deputy Regional Administrator, Region 5-Chicago, 200 West Adams Street, Suite 320, Chicago, IL 60606, Tel. 312 353-2789. States served: Illinois, Indiana, Michigan, Minnesota, Ohio, and Wisconsin.

Robert C. Patrick, Regional Administrator, Region 6-Ft. Worth, 819 Taylor Street, Room 8A36, Ft. Worth, TX 76102, Tel. 817 978-0550. States served: Arkansas, Louisiana, Oklahoma, New Mexico and Texas.

Mokhtee Ahmad, Regional Administrator, Region 7-Kansas City, MO, 901 Locust Street, Room 404, Kansas City, MO 64106, Tel. 816 329-3920. States served: Iowa, Kansas, Missouri, and Nebraska.

Lee O. Waddleton, Regional Administrator, Region 8-Denver, 12300 West Dakota Ave., Suite 310, Lakewood, CO 80228-2583, Tel. 720-963-
3300. States served: Colorado, Montana, North Dakota, South Dakota, Utah, and Wyoming.

Leslie T. Rogers, Regional Administrator, Region 9-San Francisco, 201 Mission, Street, Room 2210, San Francisco, CA 94105-1926, Tel. 415 744-3133. States served: American Samoa, Arizona, California, Guam, Hawaii, Nevada, and the Northern Mariana Islands.

Rick Krochalis, Regional Administrator, Region 10-Seattle, Jackson Federal Building, 915 Second Avenue, Suite 3142, Seattle, WA 98174-
1002, Tel. 206 220-7954. States served: Alaska, Idaho, Oregon, and Washington.

Appendix B

Specific Questions and Issues for Comment

  1. FTA seeks public comment on the continued use of the 83 percent Federal share of cost of equipment and facilities for ADA and CAA compliance. (See section IV.A.11).
  2. FTA invites comment regarding technical assistance or training that would be helpful to grantees in implementing the Special Needs of Elderly Individuals and Individuals with Disabilities program. Additionally, FTA seeks comment on strategies and measures that could be employed to evaluate the successes of this program. (See section VI.H).
  3. For the Special Needs of Elderly Individuals and Individuals with Disabilities program, FTA seeks comment on the specific aspects of the collaborative planning process (for example, participants, elements, measures, etc.). FTA also seeks comment on the relationship between the public transit-human services plans and other planning processes. (See section VI.H).
  4. FTA requests public comment on whether the State-based rural data module should serve as the basis for the new mandatory reporting requirements. (See section VI.I).
  5. Concerning the basis for section RTAP formula apportionments, comments are invited on whether the floor should again be raised and whether the low density portion of the section 5311 formula should be used. (See section VI.J).
  6. FTA invites comments on use of the National RTAP resource. (See section VI.J).
  7. SAFETEA-LU does not specify a basis for formula apportionment for the new Tribal Transit program. FTA will develop procedures for allocating the funds in consultation with the Tribes and with opportunity for public comment. An interim measure would be to allocate FY 2006 funds based on responses to a request for letters of interest. FTA requests comments on the feasibility of allocating FY 2006 funds based on this approach. (See section VI.K).
  8. We seek comments on what criteria should be considered in selecting Tribes to receive funding and what factors should be used in allocating available funds among successful applicants. (See section VI.K).
  9. FTA may establish the terms and conditions for the Tribal Transit program. FTA seeks comments about appropriate terms and conditions for the program. We especially invite comments from Tribes that previously received FTA funding about which requirements we should consider waiving for the program. (See section VI.K).
  10. FTA invites comment regarding technical assistance or training that would be helpful to grantees in implementing the JARC program. (See section VI.M).
  11. For the JARC program, FTA seeks comment on the specific aspects of the collaborative planning process (for example, participants, elements, measures, etc.). FTA also seeks comment on the relationship between the public transit-human services plans and other planning processes. (See section VI.M).
  12. SAFETEA-LU requires FTA to conduct a study to evaluate the effectiveness of the JARC program (49 U.S.C. 5316(i)(2)). FTA seeks comment on strategies and measures that will evaluate the successes of this program. (See section VI.M).
  13. FTA invites comment regarding technical assistance or training that would be helpful to grantees in implementing the New Freedom program. Additionally, FTA seeks comment on strategies and measures that could be employed to evaluate the successes of this program. (See section VI.N).
  14. We invite comment on the projects and activities stated in the SAFETEA-LU that might be funded under the New Freedom program and how they relate to what is ``beyond the ADA.'' We invite comment on activities related to ADA complementary paratransit services beyond the minimum requirements outlined in 49 CFR part 37. Further, we invite comment regarding the types of projects and services that should be considered for eligibility under New Freedom as they relate to new public transportation beyond the ADA and alternatives to public transportation beyond the ADA. (See section VI.N).
  15. FTA invites comments from all interested parties on the Planning Emphasis Areas (PEA) identified for FY 2006. (See section VII).

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[FR Doc. 05-23322 Filed 11-29-05; 8:45 am]
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