Bus and Bus Facilities Formula Program: Guidance and Application Instructions |
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Therese M. McMillan
Federal Transit Administration
April 16, 2015
[Federal Register Volume 80, Number 73 (Thursday, April 16, 2015)]
[Notices]
[Pages 20564-20570]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2015-08773]
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DEPARTMENT OF TRANSPORTATION
Federal Transit Administration
[Docket No. FTA-2014-0018]
Bus and Bus Facilities Formula Program: Guidance and Application
Instructions
AGENCY: Federal Transit Administration (FTA), DOT.
ACTION: Notice of availability of final circular.
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SUMMARY: The Federal Transit Administration (FTA) has placed in the
docket and on its Web site, guidance in the form of a circular, to
assist recipients in their implementation of the Section 5339 Bus and
Bus Facilities Formula Program (Bus Program). The purpose of this
circular is to provide recipients of FTA financial assistance with
instructions and guidance on program administration and the grant
application process. This circular is a result of the new Bus Program
enacted through the Moving Ahead for Progress in the 21st Century Act
(MAP-21).
DATES: The final circular becomes effective May 18, 2015.
FOR FURTHER INFORMATION CONTACT: For program matters, Sam Snead, Office
of Transit Programs, (202) 366-1089 or samuel.snead@dot.gov. For legal
matters, Michelle Hershman, Office of Chief Counsel, (202-493-0197) or
michelle.hershman@dot.gov. Office hours are from 8:30 a.m. to 5:00
p.m., Monday through Friday, except Federal holidays.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Overview
II. Chapter-by-Chapter Analysis
A. General Comments
B. Chapter I--Introduction and Background
C. Chapter II--Program Overview
D. Chapter III--General Program Information
E. Chapter IV--Planning and Program Development
F. Chapter V--Program Management and Administrative Requirements
G. Chapter VI--State and Program Management Plans
H. Chapter VII--Other Provisions
I. Appendices
II. Overview
The Moving Ahead for Progress in the 21st Century Act (MAP-21, Pub.
L. 112-141), signed into law on July 6, 2012, establishes the Section
5339 Bus and Bus Facilities Formula program (Section 5339 or Bus
Program), replacing some of the elements of the Bus and Bus Facilities
discretionary program (formerly 49 U.S.C. 5309(b)(3) under the Safe,
Accountable, Flexible, Efficient Transportation Equity Act: A Legacy
for Users Act of 2005 (SAFETEA-LU)). The Section 5309 Bus and Bus
Facilities Program under SAFETEA-LU provided discretionary funds for
capital bus and bus facility grants, which from 2010-2012, were
primarily used in support of the U.S. Department of Transportation's
(U.S. DOT) State of Good Repair, Bus Livability, Veterans
Transportation and Community Living, and Clean Fuels initiatives. In
addition, SAFETEA-LU allocated funds under this program for Ferry Boat
Systems, Fuel Cell Bus, and the Bus Testing program. The new Section
5339 Bus Program provides funding to replace, rehabilitate, and
purchase buses and related equipment as well as to construct bus-
related facilities.
The FTA is implementing new circular 5100.1, ``Bus and Bus
Facilities Program: Guidance and Application Instructions,'' in order
to provide grantees with guidance for applying for funding under the
Bus Program. In addition, the circular addresses the requirements that
must be met in the application for Section 5339 program assistance.
On July 30, 2014, FTA issued a notice of availability of the
proposed circular in the Federal Register (79 FR 44241) and requested
public comment on the proposed circular. The comment period closed on
September 29, 2014. The FTA received comments from 76 entities,
including trade associations, State DOTs, metropolitan planning
organizations, public transportation providers, and individuals. This
notice addresses comments received and explains changes FTA made to the
proposed circular in response to comments.
This document does not include the revised circular; however, an
electronic
[[Page 20565]]
version is available on FTA's Web site, at www.fta.dot.gov. Paper
copies may be obtained by contacting FTA's Administrative Services Help
Desk, at (202) 366-4865.
III. Chapter-by-Chapter Analysis
A. General Comments
This section addresses comments that were not directed at specific
chapters, but to the circular as a whole.
Two commenters recommended that FTA provide flexibility to
recipients of FTA funds whenever the statute can accommodate such
flexibility. With regards to this circular, one of the commenters
asserted that flexibility was necessary so that small transit systems
are not burdened with requirements applicable to large systems. In
response, most of the FTA programs authorized by Congress do not
provide for varying program requirements based on the size of the
public transportation provider. Certainly where such flexibility
exists, FTA grants that flexibility. The same commenter noted the
length of the proposed circular in relation to the length of the
statutory provision and suggested that FTA streamline the guidance
document to focus on issues specific to Section 5339 and make greater
use of cross references to other FTA guidance documents. In response,
FTA notes the purpose of the document is to provide detailed guidance
in order to address all of the legal provisions required in delivering
an FTA program. The content contained within the circular ensures
grantees fully understand the requirements of Section 5339.
Another commenter urged FTA to use consistent language and
definitions throughout its regulatory documents. The FTA has updated
this circular to be as consistent and uniform as possible with other
circulars.
A few commenters recommended FTA add language to the ``Purpose''
section to clarify its understanding of the intended purpose of the
Section 5339 program. In response, FTA notes that the purpose of the
circular and the Bus and Bus Facilities formula program is clearly
stated on the cover page of the circular.
B. Chapter I--Introduction and Background
Chapter I of the circular is an introductory chapter that covers
general information about FTA and its authorizing legislation, provides
a brief history of the Bus Program, includes definitions applicable to
the Bus Program and defines terms applicable across all FTA programs.
Where appropriate, we have used the same definitions found in
rulemakings or other circulars to ensure consistency.
The FTA received six comments on this chapter, five of which
related to definitions and one which related to fleet management plans.
One commenter indicated that the term ``original useful life'' is not
defined in the circular or any other FTA documents and could be
interpreted as a minimum useful life, an economic useful life or a
service life. The commenter stated that the distinction between a
minimum useful life and a service life is critical in determining if an
activity can be eligible as an overhaul. The FTA has amended the
circular to reflect the terminology, ``minimum useful life,'' and notes
the definition of overhaul is identical to the definition of overhaul
in Circular 9030.1E, Urbanized Area Formula Program: Program Guidance
and Application Instructions. One commenter recommended incorporating
the definition of ``rehabilitation'' from the proposed Section 5337
State of Good Repair Grants Program Circular (5300.1) into the final
version of this circular. In response, FTA has defined ``rehabilitate''
in section 4 of Chapter 1 to mean rebuild of a revenue vehicle to the
original specifications of the manufacturer. Further, given FTA's
response to comments regarding the eligibility of mid-life overhaul
activities, which is explained in more detail in the Chapter 3 analysis
in this notice, FTA has expanded the definition of rehabilitate to
include mid-life overhaul activities. This definition specifically
relates to the Bus and Bus Facilities Program as the definition in FTA
Circular 5300.1 ``State of Good Repair Grants Program: Guidance and
Application Instructions,'' pertains mostly to fixed guideway transit
projects.
Two commenters suggested revising the definition of ``Clean Fuel
Bus'' to incorporate hydraulic hybrid technology and other eligible
vehicle technologies. In response, FTA notes that the definition
included in the proposed circular mirrors the statutory language used
by Congress in creating the program (see, 49 U.S.C. 5308 [Repealed])
and includes ``other low or zero emissions technology'' which is
expansive enough to cover hydraulic hybrid and other technologies. The
FTA also notes that as most transit vehicles are already eligible for a
Federal match greater than 80 percent because of their Americans with
Disabilities Act (ADA) and Clean Air Act (CAA) compliance, the specific
inclusion of the other technologies is not going to qualify recipients
for a greater FTA match beyond the existing ceiling.
One commenter questioned the efficiency of requiring both the Fleet
Management Plan and Reporting and the Transit Asset Management (TAM)
Plans and Reporting. The commenter suggested FTA consider consolidating
the Fleet Management Plan and Reporting under the Transit Asset
Management Plans and Reporting to avoid redundancy. In response, FTA
recognizes that some of the information gathered for the Fleet
Management Plan may be useful when reporting to the National Transit
Database for Transit Asset Management and recognizes that the
requirements for the TAM plans and reporting are being promulgated
through a rule-making. Therefore, FTA is unable to consolidate them at
this time, nor does it see these requirements as redundant, but rather
as complementary. We will continue to review these processes for the
possibility of streamlining.
C. Chapter II--Program Overview
Chapter II covers general information about the Bus Program,
including program administration, eligibility and oversight. Chapter II
clarifies that FTA will only apportion Bus Program funds for urbanized
areas (UZA) to the State and to designated recipients that operate or
allocate funding to fixed-route bus operators. There are no other
eligible direct recipients for the Bus Program under MAP-21. This
section also describes the process for allocating funds to
subrecipients and discusses pass-through arrangements whereby a State
or designated recipient may pass its Bus Program grant funds through to
a subrecipient to carry out the project agreed to in the grant. Unlike
supplemental agreements between a designated recipient, direct
recipient, and FTA, a pass-through arrangement to a subrecipient does
not relieve the designated recipient of its responsibilities to carry
out the terms and conditions of the grant agreement.
The FTA received 18 comments on this chapter, 10 of which related
to recipient eligibility and the designated recipient's role in program
administration for this program.
Several of the commenters expressed concerns that only States and
designated recipients can apply for funds under the Section 5339
program and suggested FTA broaden eligibility to include fixed route
bus operators that are not designated recipients. A few commenters
suggested that the existing procedure for Section 5307 which involves
designated recipients for a metropolitan area and public transit
[[Page 20566]]
agencies executing supplemental agreements to permit public transit
agencies to apply directly to FTA and assume all responsibilities under
a grant agreement with FTA be followed under Section 5339 to relieve
the administration burden on designated recipients. Another commenter
suggested that FTA exercise its administrative authority to interpret
eligible recipients similar to the former Section 5308 Clean Fuels
program. In response, FTA notes that the statutory language in Section
5339(c) clearly states that ``eligible recipients in this section are
designated recipients that operate fixed route bus service or that
allocate funding to fixed route bus operators'' and thus, FTA has no
flexibility in its interpretation of eligible recipients for Section
5339.
A few of the commenters indicated that FTA should revise Chapter II
to clarify that Section 5339 funds may be used for bus facilities and
vehicles that do not run in fixed-route service. In response, FTA has
revised Chapter II to clarify that recipient eligibility does not limit
Section 5339 funds to fixed route projects. Thus, capital projects in
support of demand response services are eligible under the Bus Program.
Two commenters asked FTA to revise Chapter II to allow a Governor
to transfer the funds allocated to the State for use in the UZAs of
less than 200,000 in population to the Section 5307 program. The
transfer provision found at Section 5339(e)(1) allows the Governor to
transfer the ``National Distribution'' funds to supplement the State's
Section 5311 rural apportionment or to any urbanized area's Section
5307 apportionment, but does not permit the transfer requested by
commenters. The law is explicit regarding the transfer requirements of
this program, and FTA has no discretion in adding additional transfer
provisions.
One commenter asked FTA to clarify that cooperative planning
agreements between the Section 5339 designated recipient and
subrecipients developed in compliance with Federal planning regulations
(23 CFR 450, Subpart C) and that specify the role of each agency in
allocating Section 5339 funds will satisfy FTA's requirement for a
written agreement. The FTA agrees that the suggested cooperative
planning agreement is an example of a written agreement.
One commenter asked for clarification regarding whether the State
may delegate Section 5339 project selection for small urbanized area
funds to regional or local agencies as long as the State retains final
approval of the program of projects. In response, FTA notes that States
are responsible for administration of this program for small urban and
rural areas. If they choose to delegate the responsibility to make
recommendations for funding, that is allowable. However, the State must
ensure that the funds are used in small UZAs and the State must monitor
the use of the funds.
In response to the section on FTA oversight, one commenter asserted
that triennial reviews should not apply to Section 5339 designated
recipients that allocate funds to fixed route bus operators but do not
operate bus service themselves. The FTA notes that recipients may be
subject to a Triennial, State Management, or other regularly scheduled
comprehensive review to evaluate their performance. Oversight reviews
of recipient performance allow FTA to determine if the recipient is
complying with the certifications it has made. To further this effort,
FTA's oversight reviews programs have been augmented to incorporate
questions pertaining to how designated recipients administer this
program. In addition, FTA is working within its existing oversight
programs to recognize where direct recipients of Section 5307 funding,
who may be receiving direct oversight from FTA, may be subrecipients
under the Section 5339 program. As a result, FTA will look to
designated recipients for the overall administration of the program
pursuant to its management plan, but will not require duplicative
oversight. As appropriate, it is recommended that designated recipients
review the results of subrecipients' past oversight reviews.
The FTA received six comments on section 7 of this chapter related
to the Bus Program's relationship to other programs. A few commenters
expressed concern that language in this section of the proposed
circular regarding Section 5339 eligibility guidelines could thwart the
ability of a State to effectively transfer the funds for use in the
Section 5311(c) rural program. In response, FTA notes that funds
available under the National Distribution allocation may be transferred
from Section 5339 to Section 5311 for administrative purposes, but if
the funds are transferred, they must be used for eligible bus and bus
facilities capital projects.
One commenter supported FTA's clarification in this section
regarding identifying ways in which the Section 5339 funds relate to
other FTA programs, specifically as outlined under 49 U.S.C. 5309.
Specifically, the commenter stated that this clarification offers
public transit agencies some flexibility in developing financing
packages for large capital projects.
Though most comments related to bus overhauls were submitted in
relation to Chapter III of the proposed circular, one commenter noted
in response to this section that bus overhauls are listed as eligible
capital expenses in FTA Circular 9030.1E (page IV-2), which determines
projects eligible for funding through Section 5307, and FTA Circular
9040.1G (page III-8), which lists eligible capital expenses under
Section 5311. The commenter asked FTA to clarify whether its intent is
to encourage applicants to use Sections 5307 and 5311 to obtain funding
for engine overhauls instead of Section 5339. In response, recipients
are eligible to utilize these other programs to support engine
overhauls. However, as noted in the next section in response to
comments, FTA has also expanded eligibility under the Section 5339
program to include engine overhaul activities, which is described in
Chapter III.
D. Chapter III--General Program Information
In this Chapter information is provided regarding the availability
of funding and addresses general project and program eligibility. The
FTA received a number of comments on this chapter, many of which
related to FTA's proposed exclusion of midlife overhauls from the list
of eligible capital projects in section 5 of this chapter.
Several commenters expressed concern that not enough Section 5339
funds would be available to rural transit agencies based on the
apportionment calculations for the Bus Program detailed in Chapter III
of the proposed circular. Specifically, commenters asserted that the
Section 5339 funds should be allocated based on need rather than
population. One commenter asked that FTA revise section 1 to state that
the National Distribution set aside funds should be the only Section
5339 funds available to rural transit operators. Any change to the
National Distribution set aside would require legislative action. The
FTA notes that Section 5336 lists how the apportionment of all FTA
formula programs must be allocated. Therefore, FTA does not have the
discretion to change the formula allocations for Section 5339. The same
commenter asked FTA to revise section 3 to make Section 5339 funding
available for the same amount of time as Sections 5307 and 5311 funds.
In response, to ensure timely obligation of funds and for consistency
with the Section 5309 and 5337 programs as well as the former Bus and
Bus Facilities program, FTA has established the period of availability
to
[[Page 20567]]
be 4 years--the year of apportionment plus 3 additional years.
A few commenters recommended revising section 4 to expand the
Governor's ability to transfer funds to Section 5311 projects. One
commenter suggested the transfer should be mandated based on vehicle
replacement needs rather than Governor's discretion. FTA notes that the
law does not stipulate that Governors must prioritize vehicle
replacements before expansions and facilities. Therefore, FTA has no
authority to mandate funding priority as it relates to types of
projects or intended recipients (e.g. rural).
Two commenters asked FTA to allow designated recipients other than
States to transfer apportionments to Section 5307 to be used for
eligible Bus Program activities and to allow Section 5307 direct
recipients to apply directly to FTA for their allocation in order to
eliminate unreimbursed costs of full grant administration. As noted
previously, the only transfer provision allowed under this section is
for the National Distribution allocation, which is provided to the
States. Therefore, FTA notes that only States can transfer 5339 funds,
and even then it is limited to the amounts available under the National
Distribution allocation. Therefore, FTA does not have the discretion to
allow other recipients to transfer funds. Furthermore, a set aside was
not provided for administrative funds for this program.
In regards to midlife overhauls, the circular proposed that
rebuilds are eligible but overhauls and preventive maintenance are not.
The majority of the commenters recommended that overhauls be expressly
included in the list of eligible capital projects.
A few commenters recommended that FTA allow bus overhauls to be
considered as an eligible capital expense under Section 5339 by
specifically listing it as one of the capital projects eligible in
section 5 with the caveat that it is the sole preventive maintenance
activity allowed under Section 5339. One commenter asserted that FTA
has no statutory authority to make preventive maintenance ineligible
under Section 5339. A few commenters stated that the definitions for
overhaul and rebuild in the proposed circular mischaracterize overhauls
as a preventive maintenance activity and asserted that midlife
overhauls extend far beyond those areas covered by manufacturers'
recommended maintenance procedures. Several commenters asserted that
MAP-21 defines Section 5339 project eligibility to include both bus
rehabilitation and bus replacement/purchases, without distinguishing
between mid-life overhauls and rebuilds in further defining
rehabilitation.
A few commenters expressed concern that FTA's position on mid-life
overhaul eligibility could reverse the positive trend of clean fuel
technologies. Without Federal dollars available for mid-life energy
storage replacement and upgrades, financially-strapped transit agencies
may not choose to buy hybrid and electric drive buses.
In response to the myriad of comments related to bus overhauls, FTA
has revised the circular to include bus overhauls as an eligible
capital project, specifically as an eligible rehabilitation activity.
For rolling stock to be overhauled, it must have accumulated at least
40 percent of its useful life. It is important to note that overhauls
are the only preventive maintenance capital expenses allowed in the
Section 5339 program. The FTA has also notes that the overhaul
eligibility is in addition to eligibility of rehabilitation which is
defined as ``rehabilitate'' in section 4 of Chapter I.
One commenter encouraged FTA to continue to allow the use of
Federal funds for public artwork that enhances a transit facility or
has historical meaning to the local region. In response, MAP-21
specifically repealed the eligibility of public artwork in public
transportation projects. However, art can be integrated into facility
design, landscaping, and historic preservation, and funded as a capital
expense. Art also can be integrated through the use of floor or wall
tiles that contain artist-designed and fabricated elements, use of
color, use of materials, lighting, and in the overall design of a
facility. In addition, eligible capital projects include incidental
expenses related to acquisition or construction, including design
costs. Therefore, the incidental costs of incorporating art into
facilities and including an artist on a design team continue to be
eligible expenses. Procuring sculptures or other items not integral to
the facility is no longer an eligible expense.
The FTA received several comments on the proposed elimination of
``intercity bus stations and terminals'' from the list of eligible
projects contained in the proposed circular. Two commenters indicated
that ``intercity bus stations and terminals'' is the only category of
eligible projects which appears in Circular 9300.1B, but does not
appear in draft Circular 5100.1A few commenters suggested that FTA
revise section 5 to specify that intercity bus stations and terminals
are eligible for funding as joint development improvements. Other
commenters suggested FTA revise section 6 to ensure that joint
development improvements may include intercity bus stations and
terminals, including the outfitting of those stations and terminals. In
response, FTA notes that intercity facilities are an eligible activity
under the Section 5339 program as part of a joint development project.
The FTA has revised section 6 to ensure joint development improvements
expressly include intercity facilities. For more information on the
eligibility of intercity facility joint development projects see FTA
Circular 7050.1 ``Federal Transit Administration Guidance on Joint
Development,'' pages I-3 section f., III-5 section 2, and III-7 section
4.
A few of the commenters indicated that the new ``fair share of
revenue'' threshold detailed in FTA Circular 7050.1 makes use of
Section 5339 funds difficult, if not impossible, because there would be
no way for intercity bus operators to make the required payments.
Specifically, the commenters asked FTA to ensure that the ``fair share
of revenue'' threshold (page VI-4, section 5 of FTA Circular 7050.1)
does not apply to intercity bus stations or terminals; and request FTA
to use the ``publicly operated projects exception'' for such facilities
so that the amount of revenue generated is less than the amount of the
FTA investment. Chapter III of FTA Circular 7050.1 states that
community service or publicly operated facilities can have a fair share
of revenue less than the required federal threshold, but it must be
based on actual revenue. In response, FTA concurs that in accordance
with FTA Circular 7050.1, any intercity bus project that is within, or
physically part of, a ``publicly operated'' facility (as in most
cases), can have a fair share of revenue less than the federal
threshold requirements (see FTA Circular 7050.1 ``Federal Transit
Administration Guidance on Joint Development,'' page III-6 for
additional information on FTA's fair share of revenue requirements).
One commenter stated that the proposed guidance appears to exclude
as an eligible expense the procurement of replacement or expansion vans
used in revenue service and related maintenance and administrative
facilities, including specialized vans and related facilities used to
provide ADA complementary paratransit service. The proposed circular
specified the eligibility of Section 5339 Program funds for the
acquisition of ``buses'' for fleet and service expansion and for bus
maintenance and administrative facilities, consistent with the
statutory language. The list of eligible projects in both the proposed
and final circular are
[[Page 20568]]
intended to be illustrative. Although the proposed guidance also
included a more general statement that allowed the use of Section 5339
Program funds for the ``acquisition of replacement vehicles,'' the
eligibility to fund the procurement of vans to replace those that have
reached or exceeded their useful life was not clearly defined. Another
commenter recommended that the procurement of expansion or replacement
vans and related maintenance and administrative facilities used by vans
in revenue service (including those used in ADA required complementary
service) be considered eligible expenses. In response, FTA notes that
the procurement of expansion or replacement vans and related
maintenance and administrative facilities used by vans in revenue
service is an eligible activity under Section 5339. Therefore the
eligible capital project language of the circular has been adjusted to
include these activities.
Two commenters asked FTA to revise the definition of eligible
capital projects in section 5 to expressly state that use of Section
5339 funds is not limited to projects undertaken on fixed routes. The
FTA notes that the list of eligible capital projects did not expressly
limit Section 5339 funds to fixed route bus purchases. However, FTA is
amending the circular to clarify that eligible projects as authorized
in Section 5339(a)(1) and (2) are not limited to fixed route only. The
reference to fixed route only applies to determining recipient
eligibility of Section 5339 program funds.
One commenter sought clarification regarding whether general
administrative expenses that a designated recipient incurs are eligible
as an indirect cost. The FTA notes that only project administrative
costs are allowable, not program administrative costs. The same
commenter suggested that FTA include the federal share for project
administration costs. The Federal share of project administrative costs
is 80 percent since it is considered a capital expense.
One commenter sought clarification regarding whether eligible
capital projects includes only expansion of existing services or
whether Section 5339 funds can be used to fund new vehicles for new
transportation services. The FTA notes that Section 5339 funds can be
used for both the expansion of existing services and to fund vehicles
for implementation of new transportation services.
One commenter indicated that section 5 is missing information on
the percent of eligible costs based on the different possible types of
bus operating contracts. Specifically, the commenter asserted that the
circular should contain a schedule similar to Exhibit IV-1 in Circular
9030.1E, showing for various contract types the percentage presumed to
be eligible without requiring further documentation. In response, FTA
notes that only some categories of capital cost of contracting are
eligible for Section 5339 funding; specifically contract types that
include preventative maintenance are not eligible. Therefore, FTA has
updated information on capital cost of contracting in section 5 and
included Exhibit III-1: ``Percent of Contract Allowed for Capital
Assistance Without Further Justification.''
Section 10 proposed additional sources of local share that
recipients may use as part of local match for a capital project. Two
commenters expressed appreciation for FTA's provision of clear
instructions regarding how the use of Transportation Development
Credits (toll credits) should be indicated in a grant application.
Regarding local match, one commenter suggested that FTA allow the
guaranteed annual savings of an energy savings performance contract
(ESPC) to be used to offset the local match. Grantees interested in
ESPC as match should contact their FTA regional office for additional
information.
One commenter suggested that the circular should state that for ADA
or CAA activities the federal share may not exceed those applicable
shares. Specifically, the commenter stated that the circular should not
remove a recipient's flexibility to not go above 80 percent Federal
share for a project. The FTA notes that there is no loss in
flexibility. While recipients must meet certain percentages of local
match as a statutory requirement, it is a local decision as to whether
to provide overmatch. Another commenter sought clarification regarding
whether grantees will need to itemize those components of the vehicles
(i.e. the lift at 90 percent and the bus itself at 80 percent) or use
the 85 percent Federal share for ADA and CAA compliant vehicles. In
response, the purpose of the 85 percent was to codify the previously
used application of 83 percent, which was set by FTA for administrative
purposes. Recipients may use the 85 percent Federal share for ADA/CAA
compliant vehicles. In cases where the grantee is replacing just a
piece of equipment for purposes of complying with one or both of these
acts, the grantee can itemize that individual piece of equipment for 90
percent.
One commenter asserted that the match requirement should be
eliminated on all formula grants and only required on competitive
grants. 49 U.S.C. Chapter 53 requires a local match for all FTA formula
funded projects. The FTA does not have any discretion to relax this
requirement.
One commenter sought clarification regarding Section 5323(i)(2),
which permits recipients to count as local match amounts that are
expended by a private provider of the public transportation by vanpool
for the acquisition of rolling stock to be used by the provider in the
recipient's service area. The proposed circular elaborates further by
observing that the effect of this provision is to allow revenues
received in the operation of public transportation service by vanpool
that exceed operating expenses to be re-invested in capital equipment
and to be counted towards a recipient's local match requirement under a
capital cost of contracting grant agreement. The FTA's policy on
vanpool provisions was addressed in the FY 2015 Annual Apportionment
notice. However, FTA has responded to the specific questions raised by
the commenter in previous correspondence as the comments were specific
to the commenter rather than FTA's vanpool policy.
E. Chapter IV--Planning and Program Development
In this chapter, FTA proposed guidance on metropolitan and
statewide planning requirements. The chapter also addresses programming
guidelines, environmental considerations, transfer provisions, and
capital project requirements. One commenter expressed appreciation for
the language FTA included in the proposed circular regarding the
Governor's ability to allocate formula fund apportionments to small
UZAs located within or designated as Transportation Management Areas
(TMAs) that are different from the allocations FTA publishes. However,
the commenter would like FTA to return to pre-MAP-21 practices to make
it clear that apportionments for these TMA small urbanized areas must
be allocated to these areas. In response, FTA notes that MAP-21
mandated that States and the designated recipients have the discretion
as to how these funds are distributed. A change to have apportionments
to go directly to small urbanized areas would require a change in the
law. Therefore, such a change cannot be included in this circular.
Pursuant to section 5336(e), the Governor exercises the authority to
allocate section 5339 formula
[[Page 20569]]
apportionments to all small UZAs within the State--including those that
lie within the planning areas of MPOs serving TMAs. Federal law clearly
states that it is up to the State to determine the distribution method
for section 5339 funds among small UZAs, and inclusion of small UZAs
within the planning area of an MPO that serves a transportation
management area (TMA) does not change the status of those small UZAs.
They are still small UZAs and subject to the Governor's allocation. As
for the funding apportioned by formula, for small UZAs, the Governor
has flexibility to allocate the funds among the small UZAs to meet the
capital bus needs in those areas.
Regarding FTA's proposal that Section 5339 recipients develop a
program of projects (POP), two commenters asserted that MAP-21 does not
specifically require a ``program of projects'' to be submitted to the
Secretary for the 5339 program and would like FTA to relax the
requirements for the POP. The same commenters also recommended that FTA
consider adding language to the circular that allows FTA to approve
whole categories of projects immediately upon filing of the POP by a
grantee. The FTA notes that Section 5339(b) requires that recipients
comply with Section 5307 grant requirements, and the program of
projects is a requirement at 49 U.S.C. 5307(b). Further, given the
statutory provision relates to recipients, FTA expects recipients to be
applying on behalf subrecipients, and therefore the grant should be
accompanied by a POP. Another commenter sought clarification on how the
designated recipient is to notify FTA prior to making revisions to the
POP. The circular instructs designated recipients to work with their
FTA regional office when developing the POP. This is consistent with
other FTA program circulars, particularly for programs that require
POPs.
In the proposed circular, FTA provided guidance on FTA's useful
life policy. One commenter recommended that FTA increase the asset
limit for useful life determinations to 50 percent of the asset's
original value. Revisiting the standards would require extensive
research and is beyond the scope of this program circular; thus, FTA
cannot address this cross-cutting issue in this circular.
Another commenter urged FTA to continue the exemption of Section
5311 operators from the rolling stock spare ratio of 20 percent.
Furthermore, the commenter asked FTA to adopt an exemption for
contingency fleets from the spare ratio calculation and allow vehicles
that still have a federal interest or useful life be an eligible
vehicle for contingency fleets. These comments are outside the scope of
this particular circular as they are cross-cutting issues that apply to
other FTA programs. However, recipients are reminded that the rolling
stock spare ratio policy only applies to fleets of 50 or more vehicles.
One commenter asserted that FTA's proposed guidance to
competitively procure rebuilding work from the private sector would
restrict a transit agency's ability to use its staff and would also
create conflicts with labor unions. The commenter recommended that FTA
allow subrecipients that have a qualified labor force to use that labor
force for vehicle rebuilds instead of procuring the service from the
private sector. The commenter also sought clarification regarding what
may constitute a ``mitigating circumstance'' and what FTA would
consider an interference with ``normal maintenance activities'' if
rebuild work is done in-house. In addition, the commenter recommended
that FTA specify in its final guidance that overhaul and rebuild work
conducted by in-house labor are eligible expenses. Overhaul and rebuild
work conducted by in-house labor are eligible expenses. The circular
does not restrict the use of a qualified labor force for vehicle
rebuilds and overhauls. The use of a grantee's own labor force to
accomplish a capital project is force account labor and is eligible
under the program. See the current version of circular 5010 for more
information and force account requirements for capital projects. Please
note that force account requirements do not apply to overhaul
activities as those projects are considered to be preventive
maintenance.
Finally, one commenter requested clarification in response to FTA's
proposal in section 7 of this chapter indicating that Section 5339
funds are not available to be transferred between FHWA and FTA for
transit or highway projects. Section 5334(i) of title 49, U.S.C.
provides that FHWA funds used for transit projects may be transferred
to FTA, and FTA funds used for highway projects shall be transferred to
FHWA for program administration. Since funds available under Section
5339 are not available for highway projects, they may not be
transferred to FHWA.
F. Chapter V--Program Management and Administrative Requirements
This chapter outlines the requirements to which Section 5339
recipients must certify compliance, including legal, technical, and
financial capacity. Recipients (including subrecipients and
contractors) of Section 5339 program funds are required by statute to
submit data to the National Transit Database (NTD).
One commenter asserted that NTD reporting requirements should not
apply to Section 5339 recipients that are not providers of public
transportation or are not also recipients of Section 5307 or Section
5311 funds. Two commenters recommended that the section on NTD
reporting include language that confirms that if Section 5339 funds are
awarded by the State to a Section 5307 recipient (i.e., the Section
5307 recipient becomes a subrecipient of the State under the Section
5339 program), the Section 5307 recipient retains all NTD reporting
obligations, including reporting for the Section 5339 funds. The
commenters also recommended that FTA consider revising the reporting
requirements for the Section 5311 program such that NTD reporting is
rolled up at the State level and individual subrecipient reporting
ends. The same commenters also expressed concerned that the proposed
circular includes language that requires recipients or beneficiaries of
Section 5339 funding to file monthly safety and security reports in the
NTD system that contain increased reporting obligations. Although NTD
reporting requirements dictate that certain grantees report, monthly
safety and security reports are not required under the 5339 Program.
One commenter asked FTA to increase the limit for small purchases
to $150,000 as is currently proposed in the Office of Management and
Budget (OMB) Super Circular in order to allow agencies the opportunity
to purchase one or two vehicles without having to complete an onerous
competitive procurement for small purchases. On December 26, 2013, OMB
issued final guidance 2 CFR part 200 ``Uniform Administrative
Requirements, Cost Principles, and Audit Requirements for Federal
Awards'' also known as the ``Super Circular.'' 78 FR 78590. The
guidance, which will take effect with new grants obligated on or after
December 26, 2014, will supersede and apply in lieu of the common grant
rule (49 CFR parts 18 and 19), and will change the simplified
acquisition threshold from $100,000 to $150,000 to match the Federal
Acquisition Regulation. See 2 CFR 200.88. We have amended the circular
to reflect this change.
G. Chapter VI--State and Program Management Plans
This chapter begins by providing a general overview of State and
Program Management Plans (SMP and PMP)
[[Page 20570]]
which are intended to facilitate both recipient management and FTA
oversight by documenting the State's and designated recipient's
procedures and policies for administering the Section 5339 program. One
commenter expressed concern that FTA is proposing a PMP for a program
that does not warrant this high level of management. The commenter
strongly suggested the FTA reconsider the requirement for a PMP. In
response, FTA notes that a PMP or SMP, for the case of a State
recipient, is required for any program in which the recipient will be
managing subrecipients, as it facilitates both recipient management and
FTA oversight by documenting the designated recipient's procedures and
policies for administering the Section 5339 program. The primary
purpose of the PMP/SMP is to serve as the basis for FTA to perform
recipient-level management reviews of the program, and to provide
public information on the recipient's administration of the Section
5339 program. It may also be used internally by the recipient as a
program guide for local project applicants.
One commenter sought clarification regarding whether a PMP is
required from a single designated recipient within a large Urbanized
Area. If there is only one designated recipient, then a PMP is not
required. However, if the designated recipient is managing and
overseeing multiple subrecipients, then a PMP is required.
H. Chapter VII--Other Provisions
This chapter describes cross-cutting Federal requirements that
apply to the Section 5339 Program. The FTA did not receive any
substantive comments on this chapter and did not make any substantive
edits.
I. Appendices
The appendices include instructions for preparing a grant
application and a budget, an application checklist, and several forms
and representative documents that recipients will need when applying
for Section 5339 funds. One commenter recommended including a sample
sub-agreement between designated recipients and potential
subrecipients. The FTA notes that the designated recipient must still
manage the grant in TEAM. The FTA has no role in the relationship
between subrecipients and designated recipients other than determining
if the subrecipient is eligible for FTA funding. Therefore, there is
not a ``one-size fits all'' sample agreement between subrecipients and
designated recipients.
Therese M. McMillan,
Acting Administrator.
[FR Doc. 2015-08773 Filed 4-15-15; 8:45 am]
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