FR Doc E9-1412\[Federal Register: January 23, 2009 (Volume 74, Number
14)\]

\[Notices\]

\[Page 4284-4285\]

From the Federal Register Online via GPO Access \[wais.access.gpo.gov\]

\[DOCID:fr23ja09-122\]

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DEPARTMENT OF TRANSPORTATION

Federal Transit Administration

\[Docket FTA-2009-0003\]

Notice of Proposed Policy Statement for Eligible New Freedom

Projects

AGENCY: Federal Transit Administration (FTA), DOT.

ACTION: Notice.

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SUMMARY: The Federal Transit Administration (FTA) is proposing to

expand the type of projects it considers to be \`\`beyond the ADA\'\'
and

thus increase the types of projects eligible for funding under the New

Freedom program. Under the proposed interpretation, new and expanded

fixed route and demand responsive transit service designed to meet the

needs of individuals with disabilities would be eligible projects.

DATES: FTA must receive all comments by February 23, 2009. FTA will

consider late-filed comments to the extent practicable.

ADDRESSES: To ensure your comments are not entered more than once into

the Docket, please identify your submissions with the following Docket

No. FTA-2009-0003. Please make your submissions by only one of the

following means:

Federal eRulemaking Portal: http://www.regulations.gov. Follow the

online instructions for submitting comments.

Fax: 1-202-493-2251.

U.S. Post or Express Mail: U.S. Department of Transportation,

Docket Operations, West Building Ground Floor, Room W12-140, 1200 New

Jersey Ave., SE., Washington, DC 20590.

Hand Delivery: The West Building of the U.S. Department of

Transportation, 1200 New Jersey Ave., SE., Washington, DC 20590,

between 9 a.m. and 5 p.m., Monday through Friday, except Federal

holidays.

Instructions: You must include the agency name (Federal Transit

Administration) and the Docket number (FTA-2009-0003) at the beginning

of your comment. You should include two copies of your comment if you

submit it by mail. If you wish to receive confirmation that FTA

received your comment, you must include a self-addressed stamped

postcard. Note that FTA will post all comments that it receives,

including any personal information provided therein, without change to

http://www.regulations.gov.

Due to security procedures in effect since October 2001 regarding

mail deliveries, mail received through the U.S. Postal Service may be

subject to delays. Anyone submitting a comment responsive to this

notice should consider using an express mail firm to ensure the prompt

filing of any submissions not filed electronically or by hand.

FOR FURTHER INFORMATION CONTACT: Bonnie L. Graves, Attorney-Advisor,

Legislation and Regulations Division, Office of Chief Counsel, Federal

Transit Administration, 1200 New Jersey Ave., SE., Washington, DC

20590, phone: (202) 366-4011, fax: (202) 366-3809, or e-mail,

Bonnie.Graves@dot.gov; or David Schneider, same address, (202) 493-

0175, or e-mail, David.Schneider@dot.gov.

SUPPLEMENTARY INFORMATION:

Background

The New Freedom Program (49 U.S.C 5317) was established to fund

capital and operating expenses that support new public transportation

services and public transportation alternatives beyond those required

by the Americans with Disabilities Act (ADA), in order to assist

individuals with disabilities with transportation, including

transportation to and from jobs and employment support services.

When developing guidance for the New Freedom program, FTA initially

proposed that \`\`new public transportation services\'\' and \`\`public

transportation alternatives beyond those required by the ADA\'\' be

considered separate categories of service. (See 71 FR 13456, Mar. 15,

2006). Subsequent to this notice, FTA received feedback from the

Congressional authors of the New Freedom program that projects that do

not meet both criteria\--new and beyond the ADA\--are not eligible for

funding.

FTA also determined that projects are \`\`beyond the ADA\'\' only if

they allow a recipient to exceed its obligations under the ADA. For

example, because the ADA and its implementing regulations at 49 CFR

parts 37 and 38 provide very specific minimum requirements for

complementary paratransit service when an agency provides fixed route

service, New Freedom funds can be used to expand the scope of ADA

complementary paratransit service beyond the minimum requirements

stipulated in the ADA regulations at 49 CFR part 37. On the other hand,

the ADA does not require that a minimum level of public transit service

be provided in any given area. Once service is provided, however, it

must be ADA compliant, so FTA determined that projects to establish or

expand fixed route or demand responsive service would not result in an

agency exceeding its obligations under the ADA, and therefore would not

be eligible for New Freedom funding. This interpretation was conveyed

in subsequent Federal Register notices on the New Freedom program (71

FR 52610, Sept. 6, 2006, and 72 FR 14851, Mar. 29, 2007) and in the

Frequently Asked Questions document on FTA\'s website: http://

www.fta.dot.gov/funding/grants/grants_financing_3549.html.

Over the past several months, grant recipients have expressed

concerns that FTA\'s interpretation of which projects go \`\`beyond the

ADA\'\' prevents agencies in rural and small urbanized areas with
limited

public transportation service from using New Freedom funds to provide

new fixed route or demand response service targeted to meet the

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needs of people with disabilities. Stakeholders argue that these types

of projects do go \`\`beyond the ADA\'\' because they represent

transportation services that are not required under the Act or under

the U.S. DOT ADA implementing regulations.

Although stakeholders in areas with limited public transportation

service can use New Freedom funds to implement new alternatives to

public transportation, such as accessible taxis, travel training, and

mobility management, many potential recipients have informed FTA that

their greatest need is for new fixed route or demand responsive

transportation services for people with disabilities.

Proposed FTA Policy

FTA proposes that new or expanded fixed route service and new or

expanded demand response service would be eligible for New Freedom

funding provided that:

\(1\) The service is identified in the locally developed, coordinated

public transit-human services transportation plan;

\(2\) The service is designed to meet the needs of individuals with

disabilities;

\(3\) The service removes barriers to transportation and assists

persons with disabilities with transportation;

\(4\) The service was not operational on August 10, 2005, and did not

have an identified funding source as of August 10, 2005, as evidenced

by inclusion in the Transportation Improvement Program (TIP) or the

State Transportation Improvement Program (STIP); and

\(5\) The service is not designed to allow an agency to meet its

obligations under the ADA or the DOT ADA implementing regulations at 49

CFR parts 37 and 38.

This policy change retains the existing requirement that services

under the program be \`\`new\'\' services and adopts the interpretation

voiced by transportation providers that transit services other than

those that are required to be implemented under the ADA go \`\`beyond
the

ADA.\'\' Examples of newly eligible projects would be fixed route
service

extended to serve a congregate living facility or a workplace serving

large numbers of individuals with disabilities; new or expanded demand

responsive service, including new hours or days of operation, or

increased geographic coverage, to meet the needs of individuals with

disabilities. FTA encourages transit providers to include the general

public in any service that is added, that is, that providers not create

new \`\`silo\'\' transportation that is limited to individuals with

disabilities. FTA also notes that expanded fixed route service may

result in expanded ADA complementary paratransit service; since the ADA

complementary paratransit service is required under the ADA, it would

not be eligible for New Freedom funding. All new or expanded fixed

route and demand responsive services funded under the New Freedom

program will be subject to the requirements of the ADA and DOT ADA

implementing regulations.

Issued in Washington, DC, this 15th day of January 2009.

Severn E.S. Miller,

Acting Deputy Administrator.

\[FR Doc. E9-1412 Filed 1-22-09; 8:45 am\]

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