[Federal Register Volume 74, Number 81 (Wednesday, April 29, 2009)]
[Notices]
[Pages 19624-19627]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-9774]


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DEPARTMENT OF TRANSPORTATION

Federal Transit Administration

[Docket FTA-2009-0003]


Notice of 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 expanding 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 this interpretation, new and expanded fixed route and demand 
responsive transit service planned for and designed to meet the needs 
of individuals with disabilities are eligible projects.

DATES: Effective Date: May 29, 2009.

FOR FURTHER INFORMATION CONTACT: David Schneider, Transportation 
Program Specialist, Federal Transit Administration, 1200 New Jersey 
Ave. SE., Washington, DC 20590, (202) 493-0175, or e-mail, 
<a href="/cdn-cgi/l/email-protection#bffbdec9d6db91ecdcd7d1dad6dbdacdffdbd0cb91d8d0c9"><span class="__cf_email__" data-cfemail="347055425d501a67575c5a515d50514674505b401a535b42">[email protected]</span></a>; or Bonnie Graves, Attorney-Advisor, same 
address, (202) 366-0944 or e-mail, <a href="/cdn-cgi/l/email-protection#b4f6dbdadaddd19af3c6d5c2d1c7f4d0dbc09ad3dbc2"><span class="__cf_email__" data-cfemail="76341918181f13583104170013053612190258111900">[email protected]</span></a>.

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

[[Page 19625]]

this notice, FTA received feedback from the Congressional authors of 
the New Freedom program legislation 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 ADA 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 geographic 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 Web site: 
http://www.fta.dot.gov/funding/grants/grants_financing_3549.html.
    Over the course of 2008, 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 transit or demand response transit service that would 
be planned for and designed to meet the 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. Department of 
Transportation (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 designed to meet the mobility needs of people 
with disabilities.
    In response to these concerns, FTA published a notice of proposed 
policy for eligible New Freedom projects in the Federal Register (74 FR 
4284, Jan. 23, 2009). This notice proposed 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.
    The proposed policy change retained the pre-existing requirement 
that services under the program be ``new'' services and adopted 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.'' Interested parties were invited to submit comments 
on this proposed change during the 30-day comment period, which ended 
on February 23, 2009.

Comments Received and FTA Response

    FTA received comments from 32 entities in response to its January 
23, 2009, Federal Register notice. Nine State DOT one other state 
agency, two Metropolitan Planning Organizations, nine public 
transportation agencies, seven private not-for-profit organizations, 
one private for-profit organization, and three individuals submitted 
comments.
    Comment: A majority of commenters expressed support for the 
proposed policy change. These commenters stated that the change would 
increase the number of projects that could be funded under their state 
or large urbanized area's New Freedom apportionment and therefore 
decrease the amount of unobligated funds; that the change would expand 
mobility and accessibility for people with disabilities; that the 
change would help local stakeholders better meet the mobility 
priorities that they had previously identified; and that the change 
would provide stakeholders with greater flexibility and ensure that New 
Freedom funds are used more effectively. Some commenters cited specific 
services that they believed would be valuable to their community and 
that they believed would be eligible for funding under the proposed 
change. These comments are consistent with the feedback that prompted 
FTA to propose the policy change and they influenced our decision to 
issue a final policy that expanded the types of projects that are 
eligible for funding under the New Freedom program.
    Three commenters expressed opposition to the proposed change. These 
commenters stated that the change was not consistent with the intent of 
Congress when it established the New Freedom program, that the policy 
change would favor public transportation services at the expense of 
taxi services, and that taxi companies that have already received New 
Freedom funding may not receive funding in the future should the 
proposed change be enacted. Commenters also stated that the change runs 
counter to the New Freedom program's objective of promoting innovative 
services for people with disabilities, and that FTA should take steps 
to ensure that fixed route services are fully accessible for people 
with disabilities before it allows New Freedom funds to be used to 
expand fixed-route or deviated-route services. One commenter proposed 
that the policy change only apply to New Freedom program projects 
occurring in areas with populations under 200,000.
    FTA Response: Congress' intentions regarding which activities are 
eligible to receive New Freedom funding are expressed in 49 U.S.C. 
5317(b)(1), which states that ``the Secretary may make grants under 
this section to a recipient for new public transportation services and 
public transportation alternatives beyond those required by ADA 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.'' While Congress provided examples of 
services that meet this provision, the meaning of the statute's 
reference to services ``beyond those required by the Americans with 
Disabilities Act'' remains subject to interpretation.
    FTA believes that it is in the public interest to broaden its 
existing interpretation of what services go

[[Page 19626]]

``beyond the ADA,'' to include public transportation services designed 
to meet the needs of people with disabilities other than those that are 
required under the ADA, as well as public transportation services that 
allow providers to exceed their obligations under the ADA. These two 
options are not mutually exclusive. FTA's new interpretation makes 
additional activities eligible for funding without foreclosing on 
services that were already eligible under FTA's prior interpretation.
    Under the policy change, New Freedom funds can continue to be used 
to purchase and operate accessible taxis and to provide individuals 
with disabilities with vouchers to purchase rides on taxi service, and 
those grant recipients that have previously received funds for taxi 
service can continue to receive funds. The program's coordinated 
planning and competitive selection requirements, which are unaffected 
by this policy change, dictate the process by which specific eligible 
activities are selected by state and local communities. Participants in 
the New Freedom program's coordinated public transit human service 
transportation planning process have discretion to determine whether or 
not accessible taxis or taxi service for people with disabilities or 
some other eligible activity best addresses the gaps between existing 
transportation services and the mobility needs of people with 
disabilities. Additional information on the coordinated planning 
process can be found in Chapter V of FTA's New Freedom Circular 9045.1. 
The policy change does not affect the ability of local stakeholders to 
select eligible alternatives to traditional public transportation such 
as mobility management, travel training, or voucher programs. Whether 
these programs best meet the priorities and needs of people with 
disabilities is determined through the local coordinated planning 
process.
    Regarding the comment that FTA should take steps to ensure that 
fixed route services are fully accessible for people with disabilities 
before it allows New Freedom funds to be used for expand fixed-route or 
deviated-route services, FTA is committed to ensuring that existing 
fixed route services comply with the ADA and follow the procedures for 
effecting compliance established under the DOT regulations at 49 CFR 
part 27. These regulations, rather than conditioning the New Freedom 
policy, provide the appropriate mechanisms for addressing non-
compliance with the ADA.
    Regarding the suggestion that the policy change apply only to areas 
with populations under 200,000, while most of the concern over the pre-
existing policy on eligible activities was expressed by stakeholders 
residing in small urbanized or non-urbanized areas, FTA's policy change 
applies to New Freedom activities in all geographic areas. Participants 
in the coordinated planning processes in all areas can determine 
whether or not to choose activities that are now eligible under this 
policy change.
    Comment: Several commenters expressed neither support nor 
opposition to the policy change, but instead posed questions regarding 
the proposal or requested that FTA clarify the proposal. Seven 
commenters raised questions or submitted feedback on the proposed 
policy's requirement that new or expanded fixed route or demand 
response services be designed to meet the needs of individuals with 
disabilities in order to be eligible for funding. One commenter asked 
whether new or expanded fixed route or demand response transit service 
could serve members of the public in addition to people with 
disabilities. Two other commenters opposed projects that would provide 
segregated service for people with disabilities. A fourth commenter 
asked for guidance and criteria for determining whether a new or 
expanded service is designed to meet the mobility needs of people with 
disabilities as opposed to the mobility needs of the public at large. A 
fifth commenter cautioned that New Freedom funds should not be used to 
support projects that would serve the public at large and could be 
funded with general operating funds, and stated that U.S. DOT needs to 
provide oversight to ensure that services funded under the New Freedom 
program meet the intent of the law. Another commenter stated that if 
grantees intend to use the New Freedom funds for general fixed route 
service, they need to demonstrate in their grant application how the 
service would provide unique benefits to people with disabilities. 
Another commenter stated that a fixed route or demand response service 
should not be eligible for New Freedom funding simply because it 
provides accessible service for people with disabilities.
    FTA response: The final policy reiterates FTA's expectation that 
new or expanded fixed route and demand response services be open to the 
general public and that grant recipients refrain from creating new 
``silo'' transportation that segregates individuals with disabilities 
from the public at large. At the same time, in order to ensure that new 
services provide benefits to people with disabilities, the final policy 
states that the service must be planned and designed to meet the 
mobility needs of individuals with disabilities in response to 
circumstances where existing fixed route and demand response service is 
unavailable or insufficient. Examples of such services would be a fixed 
route service that is open to the general public but that is extended 
to serve a congregate living facility or a workplace serving large 
numbers of individuals with disabilities, or demand response service 
that is available to the general public but whose service area coverage 
or span of service is designed in response to mobility needs expressed 
by individuals with disabilities.
    FTA will presume that a project is planned and designed to meet the 
mobility needs of individuals with disabilities if the project is 
identified in the grant applicant's coordinated public transit human 
services transportation plan. These plans identify the transportation 
needs of individuals with disabilities, provide strategies for meeting 
these local needs, and prioritize transportation services for funding 
and implementation. New Freedom applicants are required to certify that 
projects were derived from a coordinated plan and reference the page 
number of the plan that contains information on the projects.
    Comment: One commenter raised questions regarding the proposed 
policy change's definition of ``new'' service, asking at what point in 
time a project funded with New Freedom projects would no longer be 
considered ``new.''
    FTA response: The definition of a ``new'' project has not changed. 
Once a New Freedom project has been funded, it remains ``new'' for the 
duration of the program and can continue to receive New Freedom funds.
    Comment: FTA received comments from individuals or organizations on 
other aspects of the proposed policy change. Two commenters suggested 
that FTA pursue this change through a rulemaking process, and one 
commenter requested greater clarification on projects that will be 
eligible under the new guidance that would not have been available 
under previous rules and what barriers remain to full implementation of 
the New Freedom program. One commenter requested FTA review New Freedom 
applications more closely for genuine involvement of the disability 
community in the planning process.
    FTA response: FTA determined that a rulemaking process was not 
necessary to change its determination of which projects are eligible 
under the New Freedom program because the policy does not impose 
binding obligations on

[[Page 19627]]

grant recipients or other parties. This notice provides additional 
clarification on which projects are eligible under the new guidance, 
however an analysis of what barriers remain to full implementation of 
the New Freedom program is beyond the scope of this notice.
    Regarding concerns over a lack of involvement of the disability 
community in the coordinated planning process, FTA requires New Freedom 
grant applicants to certify that the coordinated plan from which New 
Freedom projects were derived was developed through a process that 
includes representatives of public, private, and non-profit 
transportation and human services providers and participation by 
members of the public. FTA's New Freedom circular includes guidance on 
ensuring adequate outreach to allow for participation and on providing 
explicit consideration and response to public input received during the 
development of a coordinated plan. However, FTA does not review details 
of a coordinated plan's public involvement process in advance of making 
a grant award because doing so could significantly delay the award of 
New Freedom, JARC, and Section 5310 program funds to recipients and 
subrecipients. Grant recipients are required to certify that the 
coordinated planning process' public participation requirements were 
met, and FTA reviews these certifications during Triennial and State 
Management Reviews. If recipients cannot document that the requirement 
was met, then FTA issues a finding of deficiency and the recipient is 
required to take corrective action.
    FTA received several comments regarding the New Freedom program 
that were not germane to the proposed policy change, including a 
request that New Freedom funds subsidize capital expenses at a 50/50 
rather than an 80/20 Federal local match, and that the New Freedom 
circular state specifically that the program provides reimbursements to 
grant recipients. FTA will consider these comments in the context of 
its ongoing work to provide guidance and technical assistance on the 
New Freedom program.

Final Policy

    New or expanded fixed route service and new or expanded demand 
response service constitute new public transportation services beyond 
those required by ADA of 1990 (42 U.S.C. Section 12101 et seq.) that 
assist individuals with disabilities with transportation, and are 
therefore eligible for funding under the New Freedom program, provided 
that these services:
    (1) Are identified in the grant applicant's coordinated public 
transit-human services transportation plan;
    (2) Are available to the public at large but were planned and 
designed to meet the mobility needs of individuals with disabilities in 
response to circumstances where existing fixed route and demand 
response transportation is unavailable or insufficient to meet the 
mobility needs of individuals with disabilities.
    (3) Were 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
    (4) Are 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.
    Examples of such services would be a fixed route service that is 
open to the general public but that is extended to serve a congregate 
living facility or a workplace serving large numbers of individuals 
with disabilities, or demand response service that is available to the 
general public but whose service coverage or span of service is 
designed in response to mobility needs expressed by individuals with 
disabilities. FTA 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 17th day of April 2009.
Matthew J. Welbes,
Acting Deputy Administrator.
[FR Doc. E9-9774 Filed 4-28-09; 8:45 am]
BILLING CODE 4910-57-P


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