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49

Parts 600 to 999


Revised as of October 1, 2007

Transportation

Containing a codification of documents


of general applicability and future effect

As of October 1, 2007

With Ancillaries

Published by
Office of the Federal Register
National Archives and Records
Administration

A Special Edition of the Federal Register


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U.S. GOVERNMENT OFFICIAL EDITION NOTICE

Legal Status and Use of Seals and Logos


The seal of the National Archives and Records Administration
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the official codification of Federal regulations established under
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contents of the CFR, a special edition of the Federal Register, shall
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It is prohibited to use NARA’s official seal and the stylized Code
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Use of ISBN Prefix


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Table of Contents
Page
Explanation ................................................................................................ v

Title 49:

Subtitle B—Other Regulations Relating to Transportation (Contin-


ued)

Chapter VI—Federal Transit Administration, Department of


Transportation ............................................................................ 5

Chapter VII—National Railroad Passenger Corporation (AM-


TRAK) .......................................................................................... 101

Chapter VIII—National Transportation Safety Board .................... 117

Finding Aids:

Table of CFR Titles and Chapters ....................................................... 209

Alphabetical List of Agencies Appearing in the CFR ......................... 227

List of CFR Sections Affected ............................................................. 237


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Cite this Code: CFR

To cite the regulations in


this volume use title,
part and section num-
ber. Thus, 49 CFR 601.1
refers to title 49, part
601, section 1.
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Explanation
The Code of Federal Regulations is a codification of the general and permanent
rules published in the Federal Register by the Executive departments and agen-
cies of the Federal Government. The Code is divided into 50 titles which represent
broad areas subject to Federal regulation. Each title is divided into chapters
which usually bear the name of the issuing agency. Each chapter is further sub-
divided into parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year and issued
on a quarterly basis approximately as follows:
Title 1 through Title 16..............................................................as of January 1
Title 17 through Title 27 .................................................................as of April 1
Title 28 through Title 41 ..................................................................as of July 1
Title 42 through Title 50 .............................................................as of October 1
The appropriate revision date is printed on the cover of each volume.
LEGAL STATUS
The contents of the Federal Register are required to be judicially noticed (44
U.S.C. 1507). The Code of Federal Regulations is prima facie evidence of the text
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HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual issues
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To determine whether a Code volume has been amended since its revision date
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to display an OMB control number with their information collection request.

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Many agencies have begun publishing numerous OMB control numbers as amend-
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close as possible to the applicable recordkeeping or reporting requirements.
OBSOLETE PROVISIONS
Provisions that become obsolete before the revision date stated on the cover
of each volume are not carried. Code users may find the text of provisions in
effect on a given date in the past by using the appropriate numerical list of
sections affected. For the period before January 1, 2001, consult either the List
of CFR Sections Affected, 1949–1963, 1964–1972, 1973–1985, or 1986–2000, published
in 11 separate volumes. For the period beginning January 1, 2001, a ‘‘List of CFR
Sections Affected’’ is published at the end of each CFR volume.
CFR INDEXES AND TABULAR GUIDES
A subject index to the Code of Federal Regulations is contained in a separate
volume, revised annually as of January 1, entitled CFR INDEX AND FINDING AIDS.
This volume contains the Parallel Table of Statutory Authorities and Agency
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The Federal Register Index is issued monthly in cumulative form. This index
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ister.
A List of CFR Sections Affected (LSA) is published monthly, keyed to the
revision dates of the 50 CFR titles.
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There are no restrictions on the republication of textual material appearing
in the Code of Federal Regulations.
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For a legal interpretation or explanation of any regulation in this volume,
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The full text of the Code of Federal Regulations, the LSA (List of CFR Sections
Affected), The United States Government Manual, the Federal Register, Public
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vi

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The Office of the Federal Register also offers a free service on the National
Archives and Records Administration’s (NARA) World Wide Web site for public
law numbers, Federal Register finding aids, and related information. Connect
to NARA’s web site at www.archives.gov/federal-register. The NARA site also con-
tains links to GPO Access.

RAYMOND A. MOSLEY,
Director,
Office of the Federal Register.
October 1, 2007.
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THIS TITLE

Title 49—TRANSPORTATION is composed of nine volumes. The parts in these vol-


umes are arranged in the following order: Parts 1–99, parts 100–185, parts 186–
199, parts 200–299, parts 300–399, parts 400–599, parts 600–999, parts 1000–1199, part
1200 to End. The first volume (parts 1–99) contains current regulations issued
under subtitle A—Office of the Secretary of Transportation; the second volume
(parts 100–185) and the third volume (parts 186–199) contain the current regula-
tions issued under chapter I—Pipeline and Hazardous Materials Safety Adminis-
tration (DOT); the fourth volume (parts 200–299) contains the current regulations
issued under chapter II—Federal Railroad Administration (DOT); the fifth volume
(parts 300–399) contains the current regulations issued under chapter III—Federal
Motor Carrier Safety Administration (DOT); the sixth volume (parts 400–599) con-
tains the current regulations issued under chapter IV—Coast Guard (DHS), chap-
ter V—National Highway Traffic Safety Administration (DOT); the seventh vol-
ume (parts 600–999) contains the current regulations issued under chapter VI—
Federal Transit Administration (DOT), chapter VII—National Railroad Passenger
Corporation (AMTRAK), and chapter VIII—National Transportation Safety
Board; the eighth volume (parts 1000–1199) contains the current regulations issued
under chapter X—Surface Transportation Board and the ninth volume (part 1200
to End) contains the current regulations issued under chapter X—Surface Trans-
portation Board, chapter XI—Research and Innovative Technology Administra-
tion, and chapter XII—Transportation Security Administration, Department of
Transportation. The contents of these volumes represent all current regulations
codified under this title of the CFR as of October 1, 2007.

In the volume containing parts 100–185, see § 172.101 for the Hazardous Materials
Table. The Federal Motor Vehicle Safety Standards appear in part 571.

Redesignation tables for chapter III—Federal Motor Carrier Safety Administra-


tion, Department of Transportation and chapter XII—Transportation Security
Administration, Department of Transportation appear in the Finding Aids sec-
tion of the fifth and ninth volumes.

For this volume, Moja N. Mwaniki was Chief Editor. The Code of Federal Regu-
lations publication program is under the direction of Michael L. White, assisted
by Ann Worley.
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Title 49—Transportation
(This book contains parts 600 to 999)

SUBTITLE B—Other Regulations Relating to Transportation


(Continued)
Part

CHAPTER VI—Federal Transit Administration, Department


of Transportation ............................................................... 601
CHAPTER VII—National Railroad Passenger Corporation
(AMTRAK) ......................................................................... 700
CHAPTER VIII—National Transportation Safety Board .......... 800
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Subtitle B—Other Regulations
Relating to Transportation
(Continued)
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CHAPTER VI—FEDERAL TRANSIT
ADMINISTRATION, DEPARTMENT OF
TRANSPORTATION

Part Page
601 Organization, functions, and procedures ................. 7
604 Charter service ........................................................ 15
605 School bus operations ............................................. 23
30 Transportation for elderly and handicapped per-
sons ...................................................................... 30
611 Major capital investment projects .......................... 32
613 Planning assistance and standards ......................... 40
614 Transportation infrastructure management ........... 41
622 Environmental impact and related procedures ....... 41
624 Clean Fuels Grant Program .................................... 42
630 Uniform system of accounts and records and re-
porting system ..................................................... 44
633 Project management oversight ............................... 49
639 Capital leases .......................................................... 52
640 Credit assistance for surface transportation
projects ................................................................ 56
655 Prevention of alcohol misuse and prohibited drug
use in transit operations ...................................... 56
659 Rail fixed guideway systems; State safety over-
sight ..................................................................... 70
661 Buy America requirements ..................................... 80
663 Pre-award and post-delivery audits of rolling stock
purchases .............................................................. 92
665 Bus testing .............................................................. 95
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PART 601—ORGANIZATION, SOURCE: 70 FR 67318, Nov. 4, 2005, unless
otherwise noted.
FUNCTIONS, AND PROCEDURES
Subpart A—General Provisions Subpart A—General Provisions
Sec. § 601.1 Purpose.
601.1 Purpose.
601.2 Organization of the administration. This part describes the organization
601.3 General responsibilities. of the Federal Transit Administration
601.4 Responsibilities of the Administrator. (‘‘FTA’’), an operating administration
within the U.S. Department of Trans-
Subpart B—Public Availability of portation. This part also describes gen-
Information eral responsibilities of the various of-
601.10 Sources of information. fices of which FTA is comprised. In ad-
dition, this part describes the sources
Subpart C—Rulemaking Procedures and locations of available FTA pro-
gram information, and provides infor-
601.20 Applicability. mation regarding FTA’s rulemaking
601.21 Definitions.
601.22 General.
procedures.
601.23 Initiation of rulemaking.
601.24 Contents of notices of proposed rule- § 601.2 Organization of the administra-
making. tion.
601.25 Participation by interested persons. (a) The headquarters organization of
601.26 Petitions for extension of time to FTA is comprised of eight principal of-
comment.
601.27 Contents of written comments.
fices which function under the overall
601.28 Consideration of comments received. direction of the Federal Transit Ad-
601.29 Additional rulemaking proceedings. ministrator (‘‘the Administrator’’) and
601.30 Hearings. Deputy Administrator. These offices
601.31 Adoption of final rules. are:
601.32 Petitions for rulemaking or exemp- (1) Office of Administration.
tions.
(2) Office of Budget and Policy.
601.33 Processing of petition.
601.34 Petitions for reconsideration. (3) Office of Chief Counsel.
601.35 Proceedings on petitions for reconsid- (4) Office of Civil Rights.
eration. (5) Office of Communications and
601.36 Procedures for direct final rule- Congressional Affairs.
making. (6) Office of Planning and Environ-
Subpart D—Emergency Procedures for ment.
Public Transportation Systems (7) Office of Program Management.
(8) Office of Research, Demonstration
601.40 Applicability. and Innovation.
601.41 Petitions for relief. (b) FTA has ten regional offices, each
601.42 Emergency relief docket.
601.43 Opening the docket.
of which function under the overall di-
601.44 Posting to the docket. rection of the Administrator and Dep-
601.45 Required information. uty Administrator, and under the gen-
601.46 Processing of petitions. eral direction of a Regional Adminis-
601.47 Review procedures. trator. In addition, FTA has estab-
AUTHORITY: 5 U.S.C. § 552; 49 U.S.C. 5334; 49 lished a Lower Manhattan Recovery
U.S.C. 1657, 1659; Reorganization Plan No. 2 Office, which is under the general di-
of 1968 (82 Stat. 1369); 49 CFR 1.51. rection of the Director for this office.
Region/States Office/address Telephone No.

I. Connecticut, Maine, Massachusetts, New Hamp- FTA Regional Administrator, Kendall Square, 55 (617) 494–2055
shire, Rhode Island, and Vermont. Broadway, Suite 920, Cambridge, MA 02142–
1093.
II. New York, New Jersey, and U.S. Virgin Islands .. FTA Regional Administrator, One Bowling Green, (212) 668–2170
Room 429, New York, NY 10014–1415.
III. Delaware, District of Columbia, Maryland, Penn- FTA Regional Administrator, 1760 Market Street, (215) 656–7100
sylvania, Virginia, and West Virginia. Suite 500, Philadelphia, PA 19103–4124.
IV. Alabama, Florida, Georgia, Kentucky, Mis- FTA Regional Administrator, Atlanta Federal Cen- (404) 562–3500
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sissippi, North Carolina, Puerto Rico, South Caro- ter, Suite 17T50, 61 Forsyth Street, SW., Atlanta,
lina, and Tennessee. GA 30303.

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§ 601.3 49 CFR Ch. VI (10–1–07 Edition)

Region/States Office/address Telephone No.

V. Illinois, Indiana, Minnesota, Michigan, Ohio, and FTA Regional Administrator, 200 West Adams (312) 353–2789
Wisconsin. Street, Suite 320, Chicago, IL 60606.
VI. Arkansas, Louisiana, New Mexico, Oklahoma, FTA Regional Administrator, 819 Taylor Street, (817) 978–0550
and Texas. Room 8A36, Fort Worth, TX 76102.
VII. Iowa, Kansas, Missouri, and Nebraska .............. FTA Regional Administrator, 901 Locust Street, (816) 329–3920
Suite 404, Kansas City, MO 64106.
VIII. Colorado, Montana, North Dakota, South Da- FTA Regional Administrator, Dept. of Transpor- (720) 963–3300
kota, Utah, and Wyoming. tation, FTA, 12300 W. Dakota Ave., Suite 310,
Lakewood, CO 80228–2583.
IX. Arizona, California, Hawaii, Nevada, Guam, FTA Regional Administrator, 201 Mission Street, (415) 744–3133
American Samoa, and Northern Mariana Islands. Suite 310, San Francisco, CA 94105.
X. Alaska, Idaho, Oregon, and Washington .............. FTA Regional Administrator, Jackson Federal Build- (206) 220–7954
ing, 915 Second Avenue, Suite 3142, Seattle,
WA 98174–1002.
Lower Manhattan Recovery Office ............................ FTA LMRO Director, One Bowling Green, Room (212) 668–1770
436, New York, NY 10004.

§ 601.3 General responsibilities. tor General and the Government Ac-


The general responsibilities of each countability Office.
of the offices which comprise the head- (c) Office of Chief Counsel. Directed by
quarters organization of FTA are: a Chief Counsel, this office provides
(a) Office of Administration. Directed legal advice and support to the Admin-
by an Associate Administrator for Ad- istrator and FTA management. The of-
ministration, this office develops and fice is responsible for reviewing devel-
administers comprehensive programs opment and management of FTA-spon-
to meet FTA’s resource management sored projects; representing the Admin-
and administrative support require- istration before civil courts and admin-
ments in the following areas: Organiza- istrative agencies; drafting and review-
tion and management planning, infor- ing legislation and regulations to im-
mation resources management, human plement the Administration’s pro-
resources, contracting and procure- grams; and working to ensure that the
ment, and administrative services. agency upholds the highest ethical
(b) Office of Budget and Policy. Di- standards. The office coordinates with
rected by an Associate Administrator and supports the U.S. Department of
for Budget and Policy, this office is re- Transportation’s General Counsel on
sponsible for policy development and FTA legal matters.
performance measurement, strategic (d) The Office of Civil Rights. Directed
and program planning, program evalua- by a Director for Civil Rights, this of-
tion, budgeting, and accounting. The fice ensures full implementation of
office provides policy direction on leg- civil rights and equal opportunity ini-
islative proposals and coordinates the tiatives by all recipients of FTA assist-
development of regulations. The office
ance, and ensures nondiscrimination in
formulates and justifies FTA budgets
the receipt of FTA benefits, employ-
within the Department of Transpor-
ment, and business opportunities. The
tation, to the Office of Management
and Budget, and Congress. The office office advises and assists the Adminis-
establishes apportionments and allot- trator and other FTA officials in ensur-
ments for program and administrative ing compliance with applicable civil
funds, ensures that all funds are ex- rights regulations, statutes and direc-
pended in accordance with Administra- tives, including but not limited to the
tion and congressional intent, and pre- Americans with Disabilities Act of 1990
pares and coordinates statutory re- (ADA), the Civil Rights Act of 1964,
ports to Congress. The office coordi- Disadvantaged Business Enterprise
nates with and supports the Depart- (DBE) participation, and Equal Em-
ment of Transportation Chief Financial ployment Opportunity, within FTA and
Officer on all FTA accounting and fi- in the conduct of Federally-assisted
nancial management matters. This of- public transportation projects and pro-
fice also serves as the audit liaison in grams. The office monitors the imple-
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Federal Transit Admin., DOT § 601.3

rights requirements, investigates com- tion, this office is responsible for the
plaints, conducts compliance reviews, evaluation and rating of proposed
and provides technical assistance to re- projects based on a set of statutory cri-
cipients of FTA assistance and mem- teria, and applies these ratings as
bers of the public. input to the Annual New Starts Report
(e) Office of Communications and Con- and funding recommendations sub-
gressional Affairs. Directed by an Asso- mitted to Congress, as well as for FTA
ciate Administrator for Communica- approval required for projects to ad-
tions and Congressional Affairs, this vance into preliminary engineering,
office is the agency’s lead office for final design, and full funding grant
media relations, public affairs, and agreements.
Congressional relations, providing (g) Office of Program Management. Di-
quick response support to the agency, rected by an Associate Administrator
the public, and Members of Congress on for Program Management, this office
a daily basis. The office distributes in- administers a national program of cap-
formation about FTA programs and ital and operating assistance by man-
policies to the public, the transit in- aging financial and technical resources
dustry, and other interested parties and by directing program implementa-
through a variety of media. This office tion. The office coordinates all grantee
also coordinates the Administrator’s directed guidance, in the form of circu-
public appearances and is responsible lars and other communications, devel-
for managing correspondence and other ops and distributes procedures and pro-
information directed to and issued by gram guidance to assist the field staff
the Administrator and Deputy Admin- in grant program administration and
istrator. fosters responsible stewardship of Fed-
(f) Office of Planning and Environment. eral transit resources by facilitating
Directed by an Associate Adminis- and assuring consistent grant develop-
trator for Planning and Development, ment and implementation nationwide
this office administers a national pro- (Statutory, Formula, Discretionary
gram of planning assistance that pro- and Earmarks). This office manages
vides funding, guidance, and technical the oversight program for agency for-
support to State and local transpor- mula grant programs and provides na-
tation agencies. In partnership with tional expertise and direction in the
the Federal Highway Administration areas of capital construction, rolling
(FHWA), this office oversees a national stock, and risk assessment techniques.
program of planning assistance and It also assists the transit industry and
certification of metropolitan and state- State and local authorities in pro-
wide planning organizations, imple- viding high levels of safety and secu-
mented by FTA Regional Offices and rity for transit passengers and employ-
FHWA Divisional Offices. The office ees through technical assistance, train-
provides national guidance and tech- ing, public awareness, drug and alcohol
nical support in emphasis areas includ- testing and state safety oversight.
ing planning capacity building, finan- (h) Office of Research, Demonstration,
cial planning, transit oriented develop- and Innovation. Directed by an Asso-
ment, joint development, project cost ciate Administrator for Research,
estimation, travel demand forecasting, Demonstration and Innovation, this of-
and other technical areas. This office fice provides transit industry leader-
also oversees the Federal environ- ship in delivery of solutions that im-
mental review process as it applies to prove public transportation. The office
transit projects throughout the coun- undertakes research, development, and
try, including implementation of the demonstration projects that help to in-
National Environmental Policy Act crease ridership; improve capital and
(NEPA), the Clean Air Act, and related operating efficiencies; enhance safety
laws and regulations. The office pro- and emergency preparedness; and bet-
vides national guidance and oversight ter protect the environment and pro-
of planning and project development mote energy independence. The office
for proposed major transit capital fixed leads FTA programmatic efforts under
guideway projects, commonly referred the National Research Programs (49
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to as the New Starts program. In addi- U.S.C. 5314).

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§ 601.4 49 CFR Ch. VI (10–1–07 Edition)

§ 601.4 Responsibilities of the Adminis- (3) Comments received in response to


trator. notices;
The Administrator is responsible for (4) Petitions for rulemaking and re-
the planning, direction and control of consideration;
the activities of FTA and has authority (5) Denials of petitions for rule-
to approve Federal transit grants, making and reconsideration; and
loans, and contracts. The Deputy Ad- (6) Final rules.
ministrator is the ‘‘first assistant’’ for (c) Any person may examine dock-
purposes of the Federal Vacancies Re- eted material, at any time during reg-
form Act of 1998 (Pub. L. 105–277) and ular business hours after the docket is
shall, in the event of the absence or established, and may obtain a copy of
disability of the Administrator, serve such material upon payment of a fee,
as the Acting Administrator, subject to except material ordered withheld from
the limitations in that Act. In the the public under section 552(b) of Title
event of the absence or disability of 5 of the United States Code.
both the Administrator and the Deputy (d) Any person seeking documents
Administrator, officials designated by
not described above may submit a re-
the agency’s internal order on succes-
quest under the Freedom of Informa-
sion shall serve as Acting Deputy Ad-
tion Act (FOIA) by following the proce-
ministrator and shall perform the du-
dures outlined in 49 CFR Part 7.
ties of the Administrator, except for
any non-delegable statutory and/or reg-
ulatory duties. Subpart C—Rulemaking
Procedures
Subpart B—Public Availability of
§ 601.20 Applicability.
Information
This part prescribes rulemaking pro-
§ 601.10 Sources of information. cedures that apply to the issuance,
(a) FTA guidance documents. (1) Circu- amendment and revocation of rules
lars and other guidance/policy informa- under an Act.
tion are available on FTA’s Web site:
http://www.fta.dot.gov. § 601.21 Definitions.
(2) Single copies of any guidance doc- Act means statutes granting the Sec-
ument may be obtained without charge retary authority to regulate public
by calling FTA’s Administrative Serv- transportation.
ices Help Desk, at (202) 366–4865. Administrator means the Federal
(3) Single copies of any guidance doc- Transit Administrator, the Deputy Ad-
ument may also be obtained without ministrator or the delegate of either of
charge upon written request to the As- them.
sociate Administrator for Administra-
tion, Federal Transit Administration, § 601.22 General.
400 7th Street SW., Room 9107, Wash-
ington, DC, 20590, or to any FTA re- (a) Unless the Administrator, for
gional office listed in § 601.2. good cause, finds a notice is imprac-
(b) DOT Docket Management System. tical, unnecessary, or contrary to the
Unless a particular document says oth- public interest, and incorporates such a
erwise, the following rulemaking docu- finding and a brief statement of the
ments in proceedings started after Feb- reasons for it in the rule, a notice of
ruary 1, 1997, are available for public proposed rulemaking must be issued,
review and copying at the Department and interested persons are invited to
of Transportation’s Docket Manage- participate in the rulemaking pro-
ment System, Room PL 401, 400 7th ceedings involving rules under an Act.
Street SW., Washington, DC 20590, or (b) For rules for which the Adminis-
for review and downloading through trator determines that notice is unnec-
the Internet at http://dms.dot.gov: essary because no adverse public com-
(1) Advance notices of proposed rule- ment is anticipated, the direct final
making; rulemaking procedure described in
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(2) Notices of proposed rulemaking; § 601.36 of this subpart may be followed.

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Federal Transit Admin., DOT § 601.30

§ 601.23 Initiation of rulemaking. is granted to all persons, and it is pub-


The Administrator initiates rule- lished in the FEDERAL REGISTER.
making on his/her own motion. How- § 601.27 Contents of written comments.
ever, in so doing, he/she may, in his/her
discretion, consider the recommenda- All written comments must be in
tions of his/her staff or other agencies English and submitted in five (5) leg-
of the United States or of other inter- ible copies, unless the number of copies
ested persons. is specified in the notice. Any inter-
ested person must submit as part of
§ 601.24 Contents of notices of pro- his/her written comments all material
posed rulemaking. that he/she considers relevant to any
(a) Each notice of proposed rule- statement of fact made by him/her. In-
making is published in the FEDERAL corporation of material by reference is
REGISTER, unless all persons subject to to be avoided. However, if such incor-
it are named and are personally served poration is necessary, the incorporated
with a copy of it. material shall be identified with re-
(b) Each notice, whether published in spect to document and page.
the FEDERAL REGISTER or personally
served, includes: § 601.28 Consideration of comments re-
ceived.
(1) A statement of the time, place,
and nature of the proposed rulemaking All timely comments are considered
proceeding; before final action is taken on a rule-
(2) A reference to the authority under making proposal. Late filed comments
which it is issued; may be considered so far as prac-
(3) A description of the subjects and ticable.
issues involved or the substance and
terms of the proposed rule; § 601.29 Additional rulemaking pro-
ceedings.
(4) A statement of the time within
which written comments must be sub- The Administrator may initiate any
mitted; and further rulemaking proceedings that
(5) A statement of how and to what he/she finds necessary or desirable. For
extent interested persons may partici- example, interested persons may be in-
pate in the proceeding. vited to make oral arguments, to par-
ticipate in conferences between the Ad-
§ 601.25 Participation by interested ministrator or his/her representative at
persons. which minutes of the conference are
(a) Any interested person may par- kept, to appear at informal hearings
ticipate in rulemaking proceedings by presided over by officials designated by
submitting comments in writing con- the Administrator at which a tran-
taining information, views, or argu- script or minutes are kept, or partici-
ments. pate in any other proceeding to assure
(b) In his/her discretion, the Adminis- informed administrative action and to
trator may invite any interested per- protect the public interest.
son to participate in the rulemaking
procedures described in § 601.29. § 601.30 Hearings.
(a) Sections 556 and 557 of Title 5,
§ 601.26 Petitions for extension of time United States Code, do not apply to
to comment. hearings held under this part. Unless
A petition for extension of the time otherwise specified, hearings held
to submit comments must be received under this part are informal, non-ad-
not later than three (3) days before ex- versary, fact-finding procedures at
piration of the time stated in the no- which there are no formal pleadings or
tice. The filing of the petition does not adverse parties. Any rule issued in a
automatically extend the time for peti- case in which an informal hearing is
tioner’s comments. Such a petition is held is not necessarily based exclu-
granted only if the petitioner shows sively on the record of the hearing.
good cause for the extension, and if the (b) The Administrator designates a
extension is consistent with the public representative to conduct any hearing
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interest. If an extension is granted, it held under this part. The Chief Counsel

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§ 601.31 49 CFR Ch. VI (10–1–07 Edition)

of the Federal Transit Administration § 601.33 Processing of petitions.


designates a member of his/her staff to
(a) Each petition received under
serve as legal officer at the hearing.
§ 601.32 of this part is referred to the
§ 601.31 Adoption of final rules. head of the office responsible for the
subject matter of that petition. Unless
Final rules are prepared by rep- the Administrator otherwise specifies,
resentatives of the office concerned no public hearing, argument or other
and the Office of Chief Counsel. The proceeding is held directly on a peti-
rule is then submitted to the Adminis- tion before its disposition under this
trator for his/her consideration. If the section.
Administrator adopts the rule, it is
(b) Grants. If the Administrator de-
published in the FEDERAL REGISTER,
termines the petition contains ade-
unless all persons subject to it are
quate justification, he/she initiates
named and are personally served a copy
rulemaking action under this Subpart
of it.
C or grants the exemption, as the case
§ 601.32 Petitions for rulemaking or may be.
exemptions. (c) Denials. If the Administrator de-
termines the petition does not justify
(a) Any interested person may peti-
rulemaking or granting the exemption,
tion the Administrator to establish,
he/she denies the petition.
amend, or repeal a rule, or for a perma-
nent or temporary exemption from (d) Notification. Whenever the Admin-
FTA rules as allowed by law. istrator determines that a petition
(b) Each petition filed under this sec- should be granted or denied, the office
tion must: concerned and the Office of Chief Coun-
(1) Be submitted in duplicate to the sel prepare a notice of that grant or de-
Administrator, Federal Transit Admin- nial for issuance to the petitioner, and
istration, 400 Seventh Street, SW., the Administrator issues it to the peti-
Washington, DC 20590; tioner.
(2) State the name, street and mail-
§ 601.34 Petitions for reconsideration.
ing addresses, and telephone number of
the petitioner; if the petitioner is not (a) Any interested person may peti-
an individual, state the name, street tion the Administrator for reconsider-
and mailing addresses and telephone ation of a final rule issued under this
number of an individual designated as part. The petition must be in English
an agent of the petitioner for all pur- and submitted in duplicate to the Ad-
poses related to the petition; ministrator, Federal Transit Adminis-
(3) Set forth the text or substance of tration, 400 Seventh Street, SW., Wash-
the rule or amendment proposed, or of ington, DC, 20590, and received not
the rule from which the exemption is later than thirty (30) days after publi-
sought, or specify the rule that the pe- cation of the final rule in the FEDERAL
titioner seeks to have repealed, as the REGISTER. Petitions filed after that
case may be; time will be considered as petitions
(4) Explain the interest of the peti- filed under § 601.32. The petition must
tioner in the action requested, includ- contain a brief statement of the com-
ing, in the case of a petition for an ex- plaint and an explanation as to why
emption, the nature and extent of the compliance with the final rule is not
relief sought and a description of the practicable, is unreasonable, or is not
persons to be covered by the exemp- in the public interest.
tion; (b) If the petitioner requests the con-
(5) Contain any information and ar- sideration of additional facts, he/she
guments available to the petitioner to must state the reason the facts were
support the action sought; and not presented to the Administrator
(6) In the case of a petition for ex- within the prescribed comment period
emption, except in cases in which good of the rulemaking.
cause is shown, the petition must be (c) The Administrator does not con-
submitted at least 120 days before the sider repetitious petitions.
requested effective date of the exemp- (d) Unless the Administrator other-
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tion. wise provides, the filing of a petition

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Federal Transit Admin., DOT § 601.41

under this section does not stay the ef- within the specified time of publication
fectiveness of the final rule. in the FEDERAL REGISTER, FTA will
publish a notice in the FEDERAL REG-
§ 601.35 Proceedings on petitions for ISTER indicating that no adverse com-
reconsideration. ment was received and confirming that
The Administrator may grant or the rule will become effective on the
deny, in whole or in part, any petition date that was indicated in the direct
for reconsideration without further final rule.
proceedings. In the event he/she deter- (d) If FTA receives any written ad-
mines to reconsider any rule, he/she verse comment or written notice of in-
may issue a final decision on reconsid- tent to submit adverse comment with-
eration without further proceedings, or in the specified time of publication in
he/she may provide such opportunity to the FEDERAL REGISTER, a notice with-
submit comment or information and drawing the direct final rule will be
data as he/she deems appropriate. published in the final rule section of
Whenever the Administrator deter- the FEDERAL REGISTER and, if FTA de-
mines that a petition should be granted cides a rulemaking is warranted, a no-
or denied, he/she prepares a notice of tice of proposed rulemaking will be
the grant or denial of a petition for re- published in the proposed rule section
consideration and issues it to the peti- of the FEDERAL REGISTER.
tioner. The Administrator may consoli- (e) An ‘‘adverse’’ comment for the
date petitions relating to the same purpose of this subpart means any
rule. comment that FTA determines is crit-
ical of the rule, suggests that the rule
§ 601.36 Procedures for direct final should not be adopted, or suggests a
rulemaking. change that should be made in the rule.
(a) Rules the Administrator judges to A comment suggesting that the policy
be non-controversial and unlikely to or requirements of the rule should or
result in adverse public comment may should not also be extended to other
be published as direct final rules. These Departmental programs outside the
include non-controversial rules that: scope of the rule is not adverse.
(1) Affect internal procedures of FTA,
such as filing requirements and rules Subpart D—Emergency Proce-
governing inspection and copying of dures for Public Transportation
documents; Systems
(2) Are non-substantive clarifications
or corrections to existing rules;
(3) Update existing forms; AUTHORITY: 49 U.S.C. 5141 and 5334; 49 CFR
1.51.
(4) Make minor changes in the sub-
stantive rule regarding statistics and SOURCE: 72 FR 912, Jan. 9, 2007, unless oth-
reporting requirements; erwise noted.
(5) Make changes to the rule imple-
§ 601.40 Applicability.
menting the Privacy Act; and
(6) Adopt technical standards set by This part prescribes procedures that
outside organizations. apply to FTA grantees and subgrantees
(b) The FEDERAL REGISTER document when the President has declared a na-
will state that any adverse comment or tional or regional emergency, when a
notice of intent to submit adverse com- State Governor has declared a state of
ment must be received in writing by emergency, when the Mayor of the Dis-
FTA within the specified time after the trict of Columbia has declared a state
date of publication and that, if no writ- of emergency, or in anticipation of
ten adverse comment or written notice such declarations.
of intent to submit adverse comment is
received, the rule will become effective § 601.41 Petitions for relief.
a specified number of days after the In the case of a national or regional
date of publication. emergency or disaster, or in anticipa-
(c) If no written adverse comment or tion of such a disaster, any FTA grant-
written notice of intent to submit ad- ee or subgrantee may petition the Ad-
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verse comment is received by FTA ministrator for temporary relief from

13

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§ 601.42 49 CFR Ch. VI (10–1–07 Edition)

the provisions of any policy statement, (b) The docket is publicly accessible
circular, guidance document or rule. and can be accessed 24 hours a day,
seven days a week, via the Internet at
§ 601.42 Emergency relief docket. the docket facility’s Web site at http://
(a) By January 31st of each year, dms.dot.gov. Petitions may also be sub-
FTA shall establish an Emergency Re- mitted by U.S. mail or by hand deliv-
lief Docket in the publicly accessible ery to the DOT Docket Management
DOT Docket Management System Facility, Room PL–401 (Plaza Level),
(DMS) (http://dms.dot.gov). 400 7th Street, SW, Washington, DC
(b) FTA shall publish a notice in the 20590.
FEDERAL REGISTER identifying, by (c) In the event a grantee or sub-
docket number, the Emergency Relief grantee needs to request immediate re-
Docket for that calendar year. A notice lief and does not have access to elec-
shall also be published in the previous tronic means to request that relief, the
year’s Emergency Relief Docket identi- grantee or subgrantee may contact any
fying the new docket number. FTA regional office or FTA head-
(c) If the Administrator, or his/her quarters and request that FTA staff
designee, determines that an emer- submit the petition on their behalf.
gency event has occurred, or in antici- (d) Any grantee or subgrantee sub-
pation of such an event, FTA shall mitting petitions for relief or com-
place a message on its web page (http:// ments to the docket must include the
www.fta.dot.gov) indicating the Emer- agency name (Federal Transit Admin-
gency Relief Docket has been opened istration) and that calendar year’s
and including the docket number. docket number. Grantees and sub-
grantees making submissions by mail
§ 601.43 Opening the docket. or hand delivery should submit two
copies.
(a) The Emergency Relief Docket
shall be opened within two business § 601.45 Required information.
days of an emergency or disaster dec-
laration in which it appears FTA A petition for relief under this sec-
grantees or subgrantees are or will be tion shall:
impacted. (a) Identify the grantee or subgrantee
(b) In cases in which emergencies can and its geographic location;
be anticipated, such as hurricanes, (b) Specifically address how an FTA
FTA shall open the docket and place requirement in a policy statement, cir-
the message on the FTA web page in cular, or agency guidance will limit a
advance of the event. grantee’s or subgrantee’s ability to re-
(c) In the event a grantee or sub- spond to an emergency or disaster;
grantee believes the Emergency Relief (c) Identify the policy statement, cir-
Docket should be opened and it has not cular, guidance document and/or rule
been opened, that grantee or sub- from which the grantee or subgrantee
grantee may submit a petition in dupli- seeks relief; and
cate to the Administrator, via U.S. (d) Specify if the petition for relief is
mail, to: Federal Transit Administra- one-time or ongoing, and if ongoing
tion, 400 Seventh Street, SW., Wash- identify the time period for which the
ington, DC 20590; via telephone, at: relief is requested. The time period
(202) 366–4043; or via fax, at (202) 366– may not exceed three months; however,
3472, requesting opening of the Docket additional time may be requested
for that emergency and including the through a second petition for relief.
information in § 601.45. The Adminis-
trator in his/her sole discretion shall § 601.46 Processing of petitions.
determine the need for opening the (a) A petition for relief will be condi-
Emergency Relief Docket. tionally granted for a period of three
(3) business days from the date it is
§ 601.44 Posting to the docket. submitted to the Emergency Relief
(a) All petitions for relief must be Docket.
posted in the docket in order to receive (b) FTA will review the petition after
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consideration by FTA. the expiration of the three business

14

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Federal Transit Admin., DOT § 604.5

days and review any comments sub- 604.19 Appeals.


mitted thereto. FTA may contact the 604.21 Judicial review.
grantee or subgrantee that submitted APPENDIX A TO PART 604
the request for relief, or any party that AUTHORITY: 49 U.S.C. 5323(d); 23 U.S.C.
submits comments to the docket, to 103(e)(4); 142(a); and 142(c); and 49 CFR 1.51.
obtain more information prior to mak-
SOURCE: 52 FR 11933, Apr. 13, 1987, unless
ing a decision. otherwise noted.
(c) FTA shall then post a decision to
the Emergency Relief Docket. FTA’s
decision will be based on whether the Subpart A—General
petition meets the criteria for use of § 604.1 Purpose.
these emergency procedures, the sub-
stance of the request, and the com- The purpose of this part is to imple-
ments submitted regarding the peti- ment section 3(f) and section 12(c)(6) of
tion. the FT Act.
(d) If FTA fails to post a response to
§ 604.3 Applicability.
the request for relief to the docket
within three business days, the grantee This part applies to all applicants
or subgrantee may assume its petition and recipients of Federal financial as-
is granted until and unless FTA states sistance under:
otherwise. (a) Sections 3 (excluding section
16(b)(2)), 5, 9A, 9 or 18 of the FT Act; or
§ 601.47 Review Procedures. (b) Sections 103(e)(4), 142(a), or 142(c)
(a) FTA reserves the right to reopen of Title 23 United States Code which
any docket and reconsider any decision permit the use of Federal-Aid Highway
made pursuant to these emergency pro- funds to purchase buses.
cedures based upon its own initiative,
§ 604.5 Definitions.
based upon information or comments
received subsequent to the three busi- (a) All definitions in the FT Act (at
ness day comment period, or at the re- 49 U.S.C. 1608) are applicable to this
quest of a grantee or subgrantee upon part, except as may otherwise be pro-
denial of a request for relief. FTA shall vided in this section.
notify the grantee or subgrantee if it (b) The Acts means the FT Act and
plans to reconsider a decision. those parts of Title 23 United States
(b) FTA decision letters, either Code, 23 U.S.C. 103(e)(4), 142(a) and
granting or denying a petition, shall be 142(c), that provide for assistance to
posted in the appropriate Emergency public bodies for purchasing buses.
Relief Docket and shall reference the (c) Administrator means the Adminis-
document number of the petition to trator of FTA or his or her designee.
which it relates. (d) Categories of Revenue Vehicle
means bus or van.
PART 604—CHARTER SERVICE (e) Charter Service means transpor-
tation using buses or vans, or facilities
Subpart A—General funded under the Acts of a group of
persons who pursuant to a common
Sec. purpose, under a single contract, at a
604.1 Purpose. fixed charge (in accordance with the
604.3 Applicability. carrier’s tariff) for the vehicle or serv-
604.5 Definitions.
ice, have acquired the exclusive use of
604.7 Charter agreement.
604.9 Charter service. the vehicle or service to travel to-
604.11 Procedures for determining if there gether under an itinerary either speci-
are any willing and able private charter fied in advance or modified after hav-
operators. ing left the place of origin. This defini-
604.13 Reviewing evidence submitted by pri- tion includes the incidental use of FTA
vate charter operators. funded equipment for the exclusive
transportation of school students, per-
Subpart B—Complaint Process sonnel, and equipment.
604.15 Filing a complaint. (f) Chief Counsel means the Chief
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604.17 Remedies. Counsel of FTA.

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§ 604.7 49 CFR Ch. VI (10–1–07 Edition)

(g) Days means calendar days in sub- vide charter service in the area in
part A and Federal working days in which it is proposed to be provided.
subpart B.
(h) Designated Official means the ap- § 604.7 Charter agreement.
plicant’s and recipient’s employee au- (a) Every applicant for financial as-
thorized to file applications on behalf sistance under sections 3 (excluding
of the applicant or to enter into agree- section 16(b)(2)), 5, 9A, 9 or 18 of the FT
ments on behalf of the recipient. Act, or under 23 U.S.C. 103(e)(4), 142(a)
(i) Incidental Charter Service means or 142(c), must include two copies of a
charter service which does not: (1) charter bus agreement signed by the
interfere with or detract from the pro- applicant’s designated official with
vision of the mass transportation serv- each grant application submitted to
ice for which the equipment or facili- FTA after May 13, 1987. For FTA’s
ties were funded under the Acts; or (2) State administered programs, the
does not shorten the mass transpor- State is the applicant.
tation life of the equipment or facili- (b) The text of the agreement must
ties. be as follows:
(j) Interested Party means an indi- I, (name), (title), agree that (name of appli-
vidual, partnership, corporation, asso- cant) and all recipients through (name of ap-
ciation, or public or private organiza- plicant) will provide charter service that
tion that has a financial interest which uses equipment or facilities provided under
is adversely affected by the act or acts the Federal Mass Transit Act of 1964, as
amended (49 U.S.C. 1601 et seq.) or under 23
of a recipient regarding charter serv- U.S.C. 103(e)(4), 142(a) or 142(c) (the Acts)
ice. only to the extent that there are no private
(k) Non-urbanized area means an area charter service operators willing and able to
with a population of less than 50,000 provide the charter service that (name of ap-
people. plicant) and all recipients through (name of
(l) Recipient means one that has re- applicant) desire to provide unless one or
more of the exceptions in 49 CFR 604.9 ap-
ceived or is receiving Federal financial
plies.
assistance under the Acts. The term in- I further agree that (name of applicant)
cludes subrecipients of a recipient, sub- and all recipients through (name of appli-
recipients in FTA’s State administered cant) will comply with the provisions in 49
programs, public bodies that receive CFR part 604 before they provide any charter
assistance that will be passed on to an- service using equipment or facilities pro-
other public or quasi-public body, any vided under the Acts, that the requirements
operator for a recipient, whether pub- of 49 CFR part 604 will apply to any such
charter service that is provided, and that the
licly or privately owned, and may in-
definitions in 49 CFR part 604 apply to this
clude lessees of federally assisted buses agreement.
and other equipment. For any FTA
State administered program, the State Applicant
is the recipient.
llllllllllllllllllllllll
(m) State Administered Program means
any FTA grant program in which the Name
State is the recipient of funds, passes llllllllllllllllllllllll
the funds to subrecipients, and admin-
Title
isters the program for FTA.
(n) FT Act means the Federal Mass llllllllllllllllllllllll
Transit Act of 1964, as amended, 49 Date
U.S.C. 1601 et seq.
(o) FTA means the Federal Transit Federal Transit Administration
Administration. llllllllllllllllllllllll
(p) Willing and able means having the
desire, having the physical capability Name
of providing the categories of revenue llllllllllllllllllllllll
vehicles requested, and possessing the Title
legal authority, including the nec-
essary safety certifications, licenses llllllllllllllllllllllll
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and other legal prerequisites, to pro- Date

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Federal Transit Admin., DOT § 604.9

(c) If FTA approves the grant appli- (b) Exceptions. (1) A recipient may
cation, the approving official shall sign provide any and all charter service
the agreement when the grant applica- with FTA funded equipment and facili-
tion is approved. One copy of the ties to the extent that there are no
signed agreement will be retained by willing and able private charter opera-
FTA and the other copy will be re- tors.
turned to the recipient, formerly the (2) A recipient may enter into a con-
applicant. tract with a private charter operator
(d) Once the applicant and FTA enter to provide charter equipment to or
into a charter agreement, the applicant service for the private charter operator
may incorporate that agreement by if:
reference into any subsequent grant (i) The private charter operator is re-
application instead of submitting an quested to provide charter service that
agreement under 49 CFR 604.7(a). exceeds its capacity; or
(e) Each State in FTA’s State admin- (ii) The private charter operator is
istered programs must: unable to provide equipment accessible
(1) Obtain a certification of compli- to elderly and handicapped persons
ance with this part from each of its itself.
current subrecipients within 60 days of (3) A recipient in a non-urbanized
May 13, 1987. The certification shall area may petition FTA for an excep-
state: ‘‘(Name of subrecipient) certifies tion to provide charter service directly
that it shall comply with 49 CFR part to the customer if the charter service
604 in the provision of any charter serv- provided by the willing and able pri-
ice provided with FTA funded equip- vate charter operator or operators
ment or facilities.’’; would create a hardship on the cus-
(2) Retain this certification as long tomer because:
as the subrecipient is a subrecipient; (i) The willing and able private char-
and ter operator or operators impose min-
(3) Assure in each application sub- imum durations pursuant to State reg-
mitted to FTA after May 13, 1987, that ulation and the desired trip length is
all subrecipients have submitted the shorter than the mandatory trip
certification. length; or
(f) If any recipient does not antici- (ii) The willing and able private oper-
pate submitting a grant application to ator or operators are located too far
FTA during Federal fiscal year 1987, from the origin of the charter service.
the recipient must submit two copies (4) Any recipient may petition the
of the agreement set forth in § 604.7(b) Administrator for an exception to pro-
of this part within 60 days of May 13, vide charter service directly to the cus-
1987, to the appropriate FTA regional tomer for special events to the extent
office. FTA will sign the agreement, re- that private charter operators are not
tain one copy of the agreement and re- capable of providing the service.
turn the other to the recipient. (5) A recipient may execute a con-
(Approved by the Office of Management and tract with a government entity or a
Budget under Control No. 2132–0543) private, non-profit organization ex-
empt from taxation under subsection
§ 604.9 Charter service. 501(c)(1), 501(c)(3), 501(c)(4), or 501(c)(19)
(a) If a recipient desires to provide of the Internal Revenue Code to pro-
any charter service using FTA equip- vide charter service upon obtaining a
ment or facilities the recipient must certification from that entity or orga-
first determine if there are any private nization which states that:
charter operators willing and able to (i) [the entity/organization] certifies
provide the charter service which the that it is a government entity or an or-
recipient desires to provide. To the ex- ganization exempt from taxation under
tent that there is at least one such pri- subsection 501(c)(1), 501(c)(3), 501(c)(4),
vate operator, the recipient is prohib- or 501(c)(19) of the Internal Revenue
ited from providing charter service Code; there will be a significant num-
with FTA funded equipment or facili- ber of handicapped persons as pas-
ties unless one or more of the excep- sengers on this charter trip; the re-
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tions in § 604.9(b) applies. quested charter trip is consistent with

17

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§ 604.9 49 CFR Ch. VI (10–1–07 Edition)

the function and purpose of [the entity/ profit organization exempt from tax-
organization]; and the charter trip will ation under subsection 501(c)(1),
be organized and operated in compli- 501(c)(3), 501(c)(4), or 501(c)(19) of the In-
ance with Title VI of the Civil Rights ternal Revenue Code to provide charter
Act of 1964, as amended; and, section 19 service upon obtaining a certification
of the Federal Mass Transit Act of 1964, from that entity or organization which
as amended, and 49 CFR part 27; or, 45 states that:
CFR part 80; or, [the entity/organization] certifies that it is
(ii) [the entity/organization] certifies a government entity or an organization ex-
that it is a government entity or an or- empt from taxation under subsection
ganization exempt from taxation under 501(c)(1), 501(c)(3), 501(c)(4), or 501(c)(19) of the
subsection 501(c)(1), 501(c)(3), 501(c)(4), Internal Revenue Code; more than 50% of the
or 501(c)(19) of the Internal Revenue passengers on this charter trip will be elder-
Code; [the entity/organization] is a ly; the requested charter trip is consistent
with the function and purpose of [the entity/
qualified social service agency under organization]; and the charter trip will be or-
appendix A of 49 CFR part 604, as a re- ganized and operated in compliance with
cipient of funds, either directly or indi- Title VI of the Civil Rights Act of 1964, as
rectly, under one or more of the Fed- amended; and, Section 19 of the Federal Mass
eral programs listed in appendix A; the Transit Act of 1964, as amended, and 49 CFR
requested charter trip is consistent part 27; or, 45 CFR part 80.
with the function and purpose of [the (7) A recipient may provide charter
entity/organization]; and the charter service directly to the customer where
trip will be organized and operated in a formal agreement has been executed
compliance with Title VI of the Civil between the recipient and all private
Rights Act of 1964, as amended; and, charter operators it has determined to
Section 19 of the Federal Mass Transit be willing and able in accordance with
Act of 1964, as amended, and 49 CFR this part, provided that:
part 27; or, 45 CFR part 80. (i) The agreement specifically allows
(iii) [the entity/organization] cer- the recipient to provide the particular
tifies that it is a government entity or type of charter trip;
organization exempt from taxation (ii) The recipient has provided for
under subsection 501(c)(1), 501(c)(3), such an agreement in its annual public
501(c)(4), or 501(c)(19) of the Internal charter notice published pursuant to
Revenue Code; [the entity/organiza- this part before undertaking any char-
tion] either receives or is eligible to re- ter service pursuant to this exception;
ceive directly or indirectly, from a and
State or local governmental body pub- (iii) If a recipient has received sev-
lic welfare assistance funds for pur- eral responses to its annual public
poses whose implementation may re- charter notice but ceased its review
quire the transportation of a group of process after determining that one pri-
transit-advantaged or transit-depend- vate operator was willing and able, it
ent persons; following a petition pre- must, before concluding a formal char-
sented by the State in which the entity ter agreement under this section, com-
or organization resides, FTA has deter- plete the review process to ensure that
mined in writing that an FTA recipient all the willing and able private opera-
may contract directly with the entity tors are valid parties to the agreement.
or organization for charter services; (8) During the demonstration period
the requested charter trip is consistent described in paragraph (b)(8)(iv) of this
with the functions and purposes of the section, recipients in the FTA-selected
entity or organization; and the charter sites may submit applications to pro-
trip will be organized and operated in vide charter service to an advisory
compliance with Title VI of the Civil panel equally representative of public
Rights Act of 1964, as amended; and transit providers or local business or-
section 19 of the Federal Mass Transit ganizations and local private opera-
Act of 1964, as amended, and 49 CFR tors, and which has either been created
part 27; or, 45 CFR part 80. for such purpose by the grantee, the
(6) A recipient in a non-urbanized State Department of Transportation
area may execute a contract with a (State DOT), or metropolitan planning
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government entity or a private, non- organization (MPO), or which is part of

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Federal Transit Admin., DOT § 604.9

the recipient’s existing private sector (c) The process for requesting and
consultation process. granting an exception under 49 CFR
(i) The advisory panel will forward 604.9(b)(3):
these applications to the State DOT or (1) The recipient must provide the
MPO, which will grant those rec- private charter operators that it has
ommended by unanimous vote of the determined are willing and able in ac-
advisory panel. cordance with this part with a written
(ii) If the advisory panel does not notice explaining why it is seeking an
unanimously endorse an application, exception and state that they have at
the State DOT or MPO will make a de- least 30 days to submit written com-
cision to grant or deny the application
ments to the recipient on the request;
based on the following criteria:
(A) Cost evaluation. A recipient may (2) The recipient must send a copy of
provide charter service when it can do the notice, all comments received, and
so at a significantly lower cost than any further information it desires in
can private charter operators. Cost dif- support of its request to the Chief
ferences may be considered significant Counsel.
when there is approximately a twenty (3) The Chief Counsel shall review the
percent difference between the average materials submitted and issue a writ-
charge for service by private operators ten decision denying or granting in
and the recipient’s fully allocated cost whole or in part the request. In making
of providing the service, or when the this decision, the Chief Counsel may
advisory panel determines them to be seek such additional information as
significant. the Chief Counsel determines is needed.
(B) Equipment uniqueness. A recipient (4) Any exception that the Chief
may provide charter service using Counsel grants under 49 CFR 604.9(b)(3)
equipment that is not available from a shall be effective for not longer than 12
private source, when such equipment is months from the date that the Chief
essential to the purpose of the charter Counsel grants it.
trip.
(d) The process for requesting and
(C) Service nature. A recipient may
granting and exception under 49 CFR
provide unscheduled or demand respon-
sive service that could not be provided 604.9(b)(4):
by a private operator without advance (1) The recipient must submit its pe-
notice or at a substantial surcharge to tition for an exception to the Adminis-
the customer. trator at least 90 days prior to the day
(D) Specific local factors. A recipient or days on which it desires to provide
may provide service which responds to charter service.
a clear need that cannot be met by the (2) The petition must describe the
local private sector, and which is im- event, explain how it is special, and ex-
portant to the economic or social plain the amount of charter service
health and vitality of the local area. which private charter operators are not
(iii) The State DOT or MPO may not capable of providing.
grant applications to provide service (3) The Administrator will review the
that would jeopardize the economic vi- materials and issue a written decision
tality of individual private charter op- denying or granting in whole or in part
erators or would seriously detract from the request. In making this decision,
private charter business. the Administrator may seek such addi-
(iv) The service described in this sub- tional information as the Adminis-
section may be provided only during trator determines is needed.
the demonstration program to be con-
(4) Any exception granted by the Ad-
ducted through October 31, 1995, in the
following sites: ministrator under 49 CFR 604.9(b)(4)
(A) Monterey, California; shall be effective solely for the event
(B) Oklahoma City, Oklahoma; for which the recipient requests an ex-
(C) St. Louis, Missouri; ception.
(D) Yolo County, California;
(E) Four sites within the State of
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Michigan.

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§ 604.11 49 CFR Ch. VI (10–1–07 Edition)

(e) Any charter service that a recipi- (4) State the address to which the
ent provides under any of the excep- evidence must be sent.
tions in this part must be incidental (5) Include a statement that the evi-
charter service. dence necessary for the recipient to de-
termine if a private charter operator is
[52 FR 11933, Apr. 13, 1987, as amended at 53
FR 53355, Dec. 30, 1988; 58 FR 36899, July 9, willing and able includes only the fol-
1993; 58 FR 52685, Oct. 12, 1993; 59 FR 51134, lowing:
Oct. 7, 1994] (i) A statement that the private oper-
ator has the desire and the physical ca-
§ 604.11 Procedures for determining if pability to actually provide the cat-
there are any willing and able pri- egories of revenue vehicle specified;
vate charter operators. and
(a) To determine if there is at least (ii) A copy of the documents to show
one private charter operator willing that the private charter operator has
and able to provide the charter service the requisite legal authority to provide
that the recipient desires to provide, the proposed charter service and that
the recipient must complete a public it meets all necessary safety certifi-
participation process: cation, licensing and other legal re-
(1) At least 60 days before it desires quirements to provide the proposed
to begin to provide charter service if it charter service.
is not doing so on May 13, 1987; or (6) Include a statement that the re-
(2) Not more than 90 days after May cipient shall review only that evidence
13, 1987 if the recipient is providing submitted by the deadline, shall com-
charter service on May 13, 1987 and de- plete its review within 30 days of the
sires to continue to provide charter deadline, and within 60 days of the
service. deadline shall inform each private op-
(b) The public participation process erator that submitted evidence what
must at a minimum include: the results of the review are.
(1) Placing a notice in a newspaper, (7) Include a statement that the re-
or newspapers, of general circulation cipient shall not provide any charter
within the proposed geographic charter service using equipment or facilities
service area; funded under the Acts to the extent
(2) Sending a copy of the notice to all that there is at least one willing and
private charter service operators in the able private charter operator unless
proposed geographic charter service the recipient qualifies for one or more
area and to any private charter service of the exceptions in 49 CFR 604.9(b).
operator that requests notice; (d) Any recipient that desires to con-
(3) Sending a copy of the notice to tinue to provide charter service using
the United Bus Owners of America , FTA funded equipment or facilities
1300 L Street, NW., suite 1050, Wash- shall follow the procedures in 49 CFR
ington, DC 20005, and the American Bus 604.11 (b) and (c) annually during the
Association, 1100 New York Avenue, month in which it published its first
NW, Suite 1050, Washington, DC 20005– newspaper notice to redetermine the
3934. extent to which there is at least one
(c) The notice must: willing and able private charter oper-
ator.
(1) State the recipient’s name;
(e) Any recipient, including the State
(2) Describe the charter service that
in State administered programs, may
the recipient proposes to provide lim-
elect to comply with this procedure for
ited to the days, times of day, geo-
all of its subrecipients, or delegate this
graphic area, and categories of revenue
responsibility to the subrecipients, or
vehicle, but not the capacity or the du-
delegate this responsibility to only
ration of the charter service.
some of its subrecipients.
(3) Include a statement providing any
private charter operator desiring to be (Approved by the Office of Management and
considered willing and able with at Budget under Control No. 2132–0543)
least 30 days from the date of the no- [52 FR 11933, Apr. 13, 1987, as amended at 55
tice to submit written evidence to FR 34932, Aug. 27, 1990; 59 FR 43778, Aug. 25,
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prove that it is willing and able; 1994]

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Federal Transit Admin., DOT § 604.15

§ 604.13 Reviewing evidence submitted in violation of the requirements of this


by private charter operators. part may submit a written complaint
(a) The recipient shall review the evi- to the FTA Regional Administrator.
dence submitted in response to the no- The complainant shall also send a copy
tice given under 49 CFR 604.11 within 30 of the complaint to the recipient (‘‘re-
days of the deadline for the submission spondent’’).
of evidence. (b) If the Regional Administrator de-
(b) Within 60 days of the deadline for termines that the complaint is not
the submission of evidence, the recipi- without obvious merit and that it
ent shall notify each private charter states grounds on which relief may be
operator that submitted evidence of granted, the Regional Administrator
the recipient’s decision. shall advise the complainant and re-
(c) The recipient must review the evi- spondent to attempt to conciliate the
dence submitted to determine if the dispute. The period for informal concil-
evidence proves that the private char- iation shall last for up to 30 days from
ter operator has: the date of receipt of the Regional Ad-
(1) The desire and the physical capa- ministrator’s order unless an extension
bility to actually provide charter serv- is mutually agreed upon by the parties.
ice using the categories of revenue ve- (c) If the parties are unable to concil-
hicles; and iate the dispute, either party may so
(2) The required legal authority and notify the Regional Administrator in
the necessary safety certifications, li- writing. The Regional Administrator
censes and other legal requirements to shall send a copy of the complaint to
provide charter service. the respondent and provide it with 30
(d) The recipient must determine days from the receipt of the notice to
that a private charter operator which provide written evidence to show that
meets the requirements in 49 CFR no violation has occurred. The respond-
604.13(c) is willing and able. ent shall provide a copy of this infor-
(e) A recipient may look behind the mation to the complainant.
evidence submitted by a private char- (d) After the Regional Administrator
ter operator only if the recipient has receives that respondent’s evidence,
reasonable cause to believe that some the Regional Administrator shall in-
or all of the evidence has been falsified. form the complainant that it has 30
(f) A recipient may, within its discre- days from the receipt of the notice to
tion, stop reviewing the evidence sub- rebut the respondent’s evidence. The
mitted by private charter operators complainant shall provide a copy of its
when the recipient has determined that rebuttal to the respondent.
there is one or more private charter op- (e) The Regional Administrator shall
erators willing and able to provide all review the evidence submitted and pre-
of the charter service that the recipi- pare a written decision. The Regional
ent proposed to provide in its notice. A Administrator shall attempt to trans-
recipient may, however, review the evi- mit the written decision to the parties
dence submitted by all private charter within 30 days of receiving all of the
operators and create a roster of willing evidence.
and able private charter operators.
(f) If the Regional Administrator de-
(g) The entity that complies with the
termines that further investigation is
public participation process under 49
necessary, including the submission of
CFR 604.11(e) shall be responsible for
additional information or the holding
complying with the requirements in 49
of an informal evidentiary hearing, the
CFR 604.13.
Regional Administrator shall so inform
(Approved by the Office of Management and the parties in writing.
Budget under Control No. 2132–0543) (g) Either party may request an in-
formal evidentiary hearing prior to the
Subpart B—Complaint Process transmission of the Regional Adminis-
trator’s decision. The Regional Admin-
§ 604.15 Filing a complaint. istrator may grant or deny the request.
(a) An interested party (‘‘complain- (h) If an informal evidentiary hearing
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ant’’) who believes that a recipient is is held, the date and location shall be

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§ 604.17 49 CFR Ch. VI (10–1–07 Edition)

arranged by the Regional Adminis- from the receipt of the notice to rebut
trator in consultation with the parties. the appellee’s response.
Any new evidence introduced by the (e) The Administrator shall endeavor
parties at the informal evidentiary to make a final determination on the
hearing shall be submitted to the Re- appeal within 10 days of the receipt of
gional Administrator within 10 days the appellant’s rebuttal.
after the hearing. [52 FR 11933, Apr. 13, 1987, as amended at 58
(i) The Regional Administrator may FR 52685, Oct. 12, 1993]
extend the deadlines imposed in this
part for administrative convenience by § 604.21 Judicial review.
notifying all parties in writing of the The Regional Administrator’s deci-
extensions. sion, or the Administrator’s decision
[52 FR 11933, Apr. 13, 1987, as amended at 58 on appeal, shall be final and conclusive
FR 52685, Oct. 12, 1993] on all parties, but it is subject to judi-
cial review pursuant to sections 701–706
§ 604.17 Remedies. of Title 5 of the United States Code.
(a) If the Regional Administrator de- [52 FR 11933, Apr. 13, 1987, as amended at 58
termines that a violation of this part FR 52685, Oct. 12, 1993]
has occurred, the Regional Adminis-
trator may order such remedies as the APPENDIX A TO PART 604
Regional Administrator determines are The following is a list of Federal assistance
appropriate. programs administered under the United
(b) If the Regional Administrator de- States Department of Health and Human
termines that there has been a con- Services (HHS). The financial assistance
tinuing pattern of violation of this under each of these HHS programs includes
part, the Regional Administrator may funding for the transportation needs of the
program beneficiaries.
bar the respondent from the receipt of
further financial assistance for mass Program title Agency
transportation facilities and equip-
Project Grant and Coopera- Public Health Service, HHS.
ment.
tive Agreements for Tuber-
[52 FR 11933, Apr. 13, 1987, as amended at 58 culosis Control Programs.
Mental Health Service for Public Health Service, HHS.
FR 52685, Oct. 12, 1993] Cuban Entrants.
Mental Health Planning and Public Health Service, HHS.
§ 604.19 Appeals. Demonstration Projects.
Alcohol, Drug Abuse Treat- Public Health Service, HHS.
(a) The losing party may appeal the ment and Rehabilitation
Regional Administrator’s decision to Block Grant.
the Administrator within 10 days of re- Family Planning-Services ..... Public Health Service, HHS.
Community Health Centers ... Public Health Service, HHS.
ceipt of the decision. The losing party Indian Health Services— Public Health Service, HHS.
(’’appellant’’) shall include in its ap- Health Management Devel-
peal the basis for the appeal and evi- opment Program.
dence to support the position. The ap- Migrant Health Centers Public Health Service, HHS.
Grants.
pellant shall send a copy of the appeal Childhood Immunization Public Health Service, HHS.
to the prevailing party (’’appellee’’). Grants.
(b) The Administrator will only take Administration for Children, Office of Human Development
Youth and Families Services, HHS.
action on an appeal if the appellant (ACYF)—Head Start.
presents evidence that there are new ACYF Child Welfare Re- Office of Human Development
matters of fact or points of law that search and Demonstration Services, HHS.
were not available or not known during Program.
ACYF Runaway and Home- Office of Human Development
the investigation of the complaint. less Youth. Services, HHS.
(c) If the Administrator takes action ACYF Adoption Opportunities Office of Human Development
on an appeal, the Administrator shall Services, HHS.
ACYF Child Abuse and Ne- Office of Human Development
provide the appellee with 10 days from glect (State Grants). Services, HHS.
the receipt of the notice to respond to ACYF Child Abuse and Ne- Office of Human Development
the evidence contained in the appeal. glect Discretionary. Services, HHS.
Administration for Native Office of Human Development
(d) The Administrator shall send a Americans (ANA) Native Services, HHS.
copy of the appellee’s response to the
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American Programs—Fi-
appellant and provide it with 10 days nancial Assistance Grants.

22

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Federal Transit Admin., DOT § 605.1

Program title Agency Subpart B—School Bus Agreements


ANA Research, Demonstra- Office of Human Development 605.10 Purpose.
tion and Evaluation. Services, HHS. 605.11 Exemptions.
ANA Training and Technical Office of Human Development 605.12 Use of project equipment.
Assistance. Services, HHS. 605.13 Tripper service.
Administration of Develop- Office of Human Development
mental Disabilities (ADD)—
605.14 Agreement.
Services, HHS.
Basic Support and Advo- 605.15 Content of agreement.
cacy Grants. 605.16 Notice.
ADD Special Projects ........... Office of Human Development 605.17 Certification in lieu of notice.
Services, HHS. 605.18 Comments by private school bus oper-
ADD University Affiliated Fa- Office of Human Development ators.
cilities. Services, HHS. 605.19 Approval of school bus operations.
Administration on Aging Office of Human Development
(ADA) Special Programs Services, HHS Title III, Part
for the Aging—Grants for B—
Subpart C—Modification of Prior Agree-
Supportive Services and ments and Amendment of Application
Senior Centers. for Assistance
ADA Title III, Part C, Nutrition Office of Human Development
Services. Services, HHS. 605.20 Modification of prior agreements.
ADA Grants to Indian Tribes Office of Human Development 605.21 Amendment of applications for assist-
Services, HHS. ance.
ADA Training, Research and Office of Human Development
Discretionary Projects and Services, HHS.
Programs.
Subpart D—Complaint Procedures and
Social Service Block Grant ... Office of Human Development Remedies
Services, HHS.
Medical Assistance Program Health Care Financing Med- 605.30 Filing a complaint.
Title XIX. icaid; Administration, HHS. 605.31 Notification to the respondent.
Medicare—Supplemental Health Care Financing Admin- 605.32 Accumulation of evidentiary mate-
Medical Insurance. istration, HHS.0 rial.
Aid to Families with Depend- Family Support Administra- 605.33 Adjudication.
ent Children (AFDC)— tion, HHS. 605.34 Remedy where there has been a viola-
Maintenance Assistance.
tion of the agreement.
Work Incentive Program ....... Family Support Administra-
tion, HHS.
605.35 Judicial review.
Community Service Block Family Support Administra-
Grant (CSBG). tion, HHS. Subpart E—Reporting and Records
CSBG Discretionary Awards Family Support Administra-
tion, HHS. 605.40 Reports and information.
CSBG Discretionary Family Support Administra- APPENDIX A TO PART 605
Awards—Community Food tion, HHS.
and Nutrition. AUTHORITY: Federal Mass Transit Act of
Social Security—Disability In- Social Security Administration, 1964, as amended (49 U.S.C. 1601 et seq.); 23
surance. HHS. U.S.C. 103(e)(4); 23 U.S.C. 142 (a) and (c); and
Supplemental Security In- Social Security Administration, 49 CFR 1.51.
come. HHS.
Home Health Services and Public Health Service, HHS. SOURCE: 41 FR 14128, Apr. 1, 1976, unless
Training. otherwise noted.
Coal Miners Respiratory Im- Public Health Service, HHS.
pairment Treatment Clinics
and Services. Subpart A—General
Preventive Health Services— Public Health Service, HHS.
Sexually Transmitted Dis- § 605.1 Purpose.
eases Control Grants.
Health Programs for Refu- Public Health Service, HHS. (a) The purpose of this part is to pre-
gees. scribe policies and procedures to imple-
ment section 109(a) of the National
[53 FR 53355, Dec. 30, 1988] Mass Transportation Assistance Act of
1974 (Pub. L. 93–503; November 26, 1974;
88 Stat. 1565). Section 109(a) adds a new
PART 605—SCHOOL BUS section 3(g) to the Federal Mass Tran-
OPERATIONS sit Act of 1964, as amended (49 U.S.C.
1602(g)) and differs from section 164(b)
Subpart A—General of the Federal-Aid Highway Act of 1973
Sec. (49 U.S.C. 1602a(b)) in that section 3(g)
605.1 Purpose. applies to all grants for the construc-
605.2 Scope. tion or operation of mass transpor-
605.3 Definitions. tation facilities and equipment under
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605.4 Public hearing requirement. the Federal Mass Transit Act, and is

23

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§ 605.2 49 CFR Ch. VI (10–1–07 Edition)

not limited to grants for the purchase under the Acts, but does not include re-
of buses as is section 164(b). search, development and demonstra-
(b) By the terms of section 3(g) no tion projects funded under the Acts.
Federal financial assistance may be Grant contract means the contract be-
provided for the construction or oper- tween the Government and the grantee
ation of facilities and equipment for which states the terms and conditions
use in providing public mass transpor- for assistance under the Acts.
tation service to an applicant unless Government means the Government of
the applicant and the Administrator the United States of America.
enter into an agreement that the appli- Grantee means a recipient of assist-
cant will not engage in school bus oper- ance under the Acts.
ations exclusively for the transpor- Incidental means the transportation
tation of students and school per- of school students, personnel and
sonnel, in competition with private equipment in charter bus operations
school bus operators. during off peak hours which does not
interfere with regularly scheduled
§ 605.2 Scope. service to the public (as defined in the
These regulations apply to all recipi- Opinion of the Comptroller General of
ents of financial assistance for the con- the United States, B160204, December 7,
struction or operation of facilities and 1966, which is attached as appendix A of
equipment for use in providing mass this part).
transportation under: (a) The Federal Interested party means an individual,
Mass Transit Act of 1964, as amended partnership, corporation, association
(49 U.S.C. 1601 et seq.); (b) 23 U.S.C. 142 or public or private organization that
(a) and (c); and 23 U.S.C. 103 (e)(4). has a financial interest which is ad-
versely affected by the act or acts of a
§ 605.3 Definitions. grantee with respect to school bus op-
(a) Except as otherwise provided, erations.
terms defined in the Federal Mass Reasonable Rates means rates found
Transit Act of 1964, as amended (49 by the Administration to be fair and
U.S.C. 1604, 1608) are used in this part equitable taking into consideration the
as so defined. local conditions which surround the
(b) For purposes of this part— area where the rate is in question.
The Acts means the Federal Mass School bus operations means transpor-
Transit Act of 1964, as amended (49 tation by bus exclusively for school
U.S.C. 1601 et seq.); 23 U.S.C. 142 (a) and students, personnel and equipment in
(c); and 23 U.S.C. 103(e)(4). Type I and Type II school vehicles as
Administrator means the Federal Mass defined in Highway Safety Program
Transit Administrator or his designee. Standard No. 17.
Adequate transportation means trans- Tripper service means regularly sched-
portation for students and school per- uled mass transportation service which
sonnel which the Administrator deter- is open to the public, and which is de-
mines conforms to applicable safety signed or modified to accommodate the
laws; is on time; poses a minimum of needs of school students and personnel,
discipline problems; is not subject to using various fare collections or sub-
fluctuating rates; and is operated effi- sidy systems. Buses used in tripper
ciently and in harmony with state edu- service must be clearly marked as open
cational goals and programs. to the public and may not carry des-
Agreement means a contractual agree- ignations such as ‘‘school bus’’ or
ment required under section 3(g) of the ‘‘school special’’. These buses may stop
Federal Mass Transit Act of 1964, as only at a grantee or operator’s regular
amended (49 U.S.C. 1602(g)). service stop. All routes traveled by
Applicant means applicant for assist- tripper buses must be within a grant-
ance under the Acts. ee’s or operator’s regular route service
Assistance means Federal financial as indicated in their published route
assistance for the purchase of buses schedules.
and the construction or operation of fa- Urban area means the entire area in
cilities and equipment for use in pro- which a local public body is authorized
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viding mass transportation services by appropriate local, State and Federal

24

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Federal Transit Admin., DOT § 605.15

law to provide regularly scheduled (1) In the case of a grant involving


mass transportation service. This in- the purchase of buses—anytime during
cludes all areas which are either: (a) the 12-month period immediately prior
Within an ‘‘urbanized area’’ as defined to August 13, 1973.
and fixed in accordance with 23 CFR (2) In the case of a grant for con-
part 470, subpart B; or (b) within an struction or operating of facilities and
‘‘urban area’’ or other built-up place as equipment made pursuant to the FT
determined by the Secretary under sec- Act as amended (49 U.S.C. 1601 et seq.),
tion 12(c)(4) of the Federal Mass Tran- anytime during the 12-month period
sit Act of 1964, as amended (49 U.S.C. immediately prior to November 26,
1608(c)(4)).
1974.
§ 605.4 Public hearing requirement.
§ 605.12 Use of project equipment.
Each applicant who engages or wish-
es to engage in school bus operations No grantee or operator of project
shall afford an adequate opportunity equipment shall engage in school bus
for the public to consider such oper- operations using buses, facilities or
ations at the time the applicant con- equipment funded under the Acts. A
ducts public hearings to consider the grantee or operator may, however, use
economic, social or environmental ef- such buses, facilities and equipment for
fects of its requested Federal financial the transportation of school students,
assistance under section 3(d) of the personnel and equipment in incidental
Federal Mass Transit Act of 1964, as charter bus operations. Such use of
amended (49 U.S.C. 1602(d)). project equipment is subject to part 604
of Federal Mass Transit Regulations.
Subpart B—School Bus
§ 605.13 Tripper service.
Agreements
The prohibition against the use of
§ 605.10 Purpose. buses, facilities and equipment funded
The purpose of this subpart is to for- under the Acts shall not apply to trip-
mulate procedures for the development per service.
of an agreement concerning school bus
operations. § 605.14 Agreement.
Except as provided in § 605.11 no as-
§ 605.11 Exemptions.
sistance shall be provided under the
A grantee or applicant may not en- Acts unless the applicant and the Ad-
gage in school bus operations in com- ministrator shall have first entered
petition with private school bus opera- into a written agreement that the ap-
tors unless it demonstrates to the sat- plicant will not engage in school bus
isfaction of the Administrator as fol- operations exclusively for the transpor-
lows: tation of students and school personnel
(a) That it operates a school system in competition with private school bus
in its urban area and also operates a operators.
separate and exclusive school bus pro-
gram for that school system; or § 605.15 Content of agreement.
(b) That private school bus operators
in the urban area are unable to provide (a) Every grantee who is not author-
adequate transportation, at a reason- ized by the Administrator under § 605.11
able rate, and in conformance with ap- of this part to engage in school bus op-
plicable safety standards; or erations shall, as a condition of assist-
(c) That it is a state or local public ance, enter into a written agreement
body or agency thereof (or a direct required by § 605.14 which shall contain
predecessor in interest which has ac- the following provisions:
quired the function of so transporting (1) The grantee and any operator of
schoolchildren and personnel along project equipment agrees that it will
with facilities to be used therefor) who not engage in school bus operations in
was so engaged in school bus oper- competition with private school bus
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ations: operators.

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§ 605.16 49 CFR Ch. VI (10–1–07 Edition)

(2) The grantee agrees that it will not its urban area a notice of its applica-
engage in any practice which con- tion and its proposed or existing school
stitutes a means of avoiding the re- bus operations;
quirements of this agreement, part 605 (b) The notice required by paragraphs
of the Federal Mass Transit Regula- (a) (1) and (2) of this section shall in-
tions, or section 164(b) of the Federal- clude the following information:
Aid Highway Act of 1973 (49 U.S.C. (1) A description of the area to be
1602a(b)). served by the applicant.
(b) Every grantee who obtains au- (2) An estimation of the number of
thorization from the Administrator to each type of bus which will be em-
engage in school bus operations under ployed on the proposed school bus oper-
§ 605.11 of this part shall, as a condition ations, and the number of weekdays
of assistance, enter into a written those buses will be available for school
agreement required by § 605.14 of this bus operations.
part which contains the following pro- (3) A statement of the time, date, and
visions: place of public hearings required under
(1) The grantee agrees that neither it section 3(d) of the Federal Mass Tran-
nor any operator of project equipment sit Act of 1964, as amended (49 U.S.C.
will engage in school bus operations in 1602(d)), to be held on the application
competition with private school bus for assistance.
operators except as provided herein.
(4) A statement setting forth reasons
(2) The grantee, or any operator of
the applicant feels it should be allowed
project equipment, agrees to promptly
to engage in school bus operations
notify the Administrator of any
under § 605.11 of this part.
changes in its operations which might
jeopardize the continuation of an ex- (c) Copies of the application for as-
emption under § 605.11. sistance and notice required by para-
(3) The grantee agrees that it will not graph (a) of this shall be available for
engage in any practice which con- inspection during the regular business
stitutes a means of avoiding the re- hours at the office of the applicant.
quirements of this agreement, part 605
§ 605.17 Certification in lieu of notice.
of the Federal Transit Administration
regulations or section 164(b) of the Fed- If there are no private school bus op-
eral-Aid Highway Act of 1973 (49 U.S.C. erators operating in the applicant’s
1602a(b)). urban area, the applicant may so cer-
(4) The grantee agrees that the tify in its application in lieu of meet-
project facilities and equipment shall ing the requirements of § 605.16. This
be used for the provision of mass trans- certification shall be accompanied by a
portation services within its urban statement that the applicant has pub-
area and that any other use of project lished, in a newspaper of general cir-
facilities and equipment will be inci- culation in its urban area, a notice
dental to and shall not interfere with stating that it has applied for assist-
the use of such facilities and equip- ance as provided under § 605.16(b) and
ment in mass transportation service to that it has certified that there are no
the public. private school bus operators operating
in its urban area. A copy of the notice
§ 605.16 Notice. as published shall be included.
(a) Each applicant who engages or
wishes to engage in school bus oper- § 605.18 Comments by private school
bus operators.
ations shall include the following in its
application: Private school bus operators may file
(1) A statement that it has provided written comments on an applicant’s
written notice to all private school bus proposed or existing school bus oper-
operators operating in the urban area ations at the time of the public hearing
of its application for assistance and its held pursuant to section 3(d) of the
proposed or existing school bus oper- Federal Mass Transit Act of 1964, as
ations; amended (49 U.S.C. 1602(d)). The com-
(2) A statement that it has published ments of private school bus operators
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in a newspaper of general circulation in must be submitted by the applicant to

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Federal Transit Admin., DOT § 605.30

the Administrator together with the U.S.C. 1602(a)(b)), or section 3(g) of the
transcript of this public hearing. Federal Mass Transit Act of 1964, as
amended (49 U.S.C. 1602(g)), who en-
§ 605.19 Approval of school bus oper- gages or wishes to engage in school bus
ations. operations in competition with private
(a) The Administrator will consider school bus operators, shall seek modi-
the comments filed by private school fication of that agreement in accord-
bus operators prior to making any find- ance with paragraphs (b) through (d) of
ings regarding the applicant’s proposed this section.
or existing school bus operations. (b) The grantee shall develop a state-
(b) After a showing by the applicant ment setting forth in detail the reasons
that it has complied with the require- it feels it should be allowed to engage
ments of 49 U.S.C. 1602(d) and this sub- in school bus operations under § 605.11
part, the Administrator may approve of this part. A copy of the statement
its school bus operations. should be provided private school bus
(c) If the Administrator finds that operators who provide service in the
the applicant has not complied with grantee’s urban area.
the notice requirement of this part or (c) The grantee shall allow 30 days
otherwise finds that the applicant’s for persons receiving notice under this
proposed or existing school bus oper- section to respond with written com-
ations are unacceptable, he will so no- ments concerning its proposed or exist-
tify the applicant in writing, stating ing school bus operations.
the reasons for his findings. (d) After receiving written com-
(d) Within 20 days after receiving no- ments, the grantee shall send his pro-
tice of adverse findings from the Ad- posal with written comments thereon
ministrator, an applicant may file to the Administrator for his review
written objections to the Administra- under § 605.17.
tor’s findings or submit a revised pro-
posal for its school bus operations. If § 605.21 Amendment of applications
an applicant revises its proposed or ex- for assistance.
isting school bus operations, it shall Pending applications for assistance
mail a copy of these revisions along upon which public hearings have been
with the findings of the administrator held pursuant to section 3(d) of the
to private school bus operators re- Federal Mass Transit Act of 1964, as
quired to be notified under § 605.16. amended (49 U.S.C. 1602(d)), and appli-
(e) Private school bus operators who cations which have been approved by
receive notice under paragraph (d) of the Administrator but for which no
this section may within 20 days after grant contract has been executed, shall
receipt of notice file written comments be amended by the applicant to con-
on the proposed revisions with the Ad- form to this part by following the pro-
ministrator. The Administrator will cedures of § 605.20(b) through (d).
consider these comments prior to his
approval of a proposed revision by the Subpart D—Complaint Procedures
applicant. and Remedies
(f) Upon receipt of notice of approval
of its school bus operations, the appli- § 605.30 Filing a complaint.
cant may enter into an agreement with Any interested party may file a com-
the Administrator under § 605.14. plaint with the Administrator alleging
a violation or violations of terms of an
Subpart C—Modification of Prior agreement entered into pursuant to
Agreements and Amendment § 605.14. A complaint must be in writ-
of Application for Assistance ing, must specify in detail the action
claimed to violate the agreement, and
§ 605.20 Modification of prior agree- must be accompanied by evidence suffi-
ments. cient to enable the Administrator to
(a) Any grantee which, prior to the make a preliminary determination as
adoption of this part, entered into an to whether probable cause exists to be-
agreement required by section 164(b) of lieve that a violation of the agreement
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the Federal-Aid Highway Act of 1973 (49 has taken place.

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§ 605.31 49 CFR Ch. VI (10–1–07 Edition)

§ 605.31 Notification to the respondent. § 605.35 Judicial review.


On receipt of any complaint under The determination of the Adminis-
§ 605.30, or on his own motion if at any trator pursuant to this subpart shall be
time he shall have reason to believe final and conclusive on all parties, but
that a violation may have occurred, shall be subject to judicial review pur-
the Administrator will provide written suant to title 5 U.S.C. 701–706.
notification to the grantee concerned
(hereinafter called ‘‘the respondent’’) Subpart E—Reporting and Records
that a violation has probably occurred.
The Administrator will inform the re- § 605.40 Reports and information.
spondent of the conduct which con- The Administrator may order any
stitutes a probable violation of the grantee or operator for the grantee, to
agreement. file special or separate reports setting
forth information relating to any
§ 605.32 Accumulation of evidentiary transportation service rendered by
material. such grantee or operator, in addition to
The Administrator will allow the re- any other reports required by this part.
spondent not more than 30 days to APPENDIX A TO PART 605
show cause, by submission of evidence,
why no violation should be deemed to COMPTROLLER GENERAL OF THE
have occurred. A like period shall be UNITED STATES,
Washington, DC, December 7, 1966.
allowed to the complainant, if any,
DEAR MR. WILSON: The enclosure with your
during which he may submit evidence letter of October 4, 1966, concerns the legal-
to rebut the evidence offered by the re- ity of providing a grant under the Federal
spondent. The Administrator may un- Mass Transit Act of 1964 to the City of San
dertake such further investigation, as Diego, (City), California. The problem in-
he may deem necessary, including, in volved arises in connection with the defini-
his discretion, the holding of an evi- tion in subsection 9(d)(5) of the Act, 49 U.S.C.
dentiary hearing or hearings. 1608(d)(5), excluding charter or sightseeing
service from the term ‘‘mass transpor-
tation.’’
§ 605.33 Adjudication. It appears from the enclosure with your
(a) After reviewing the results of letter that the City originally included in its
such investigation, including hearing grant application a request for funds to pur-
transcripts, if any, and all evidence chase 8 buses designed for charter service.
Subsequently the City amended its applica-
submitted by the parties, the Adminis- tion by deleting a request for a portion of
trator will make a written determina- the funds attributable to the charter bus
tion as to whether the respondent has coaches. However, in addition to the 8 spe-
engaged in school bus operations in cially designed charter buses initially ap-
violation of the terms of the agree- plied for, the City allegedly uses about 40 of
ment. its transit type buses to a substantial extent
for charter-type services. In light of these
(b) If the Administrator determines
factors surrounding the application by the
that there has been a violation of the City, the enclosure requests our opinion with
agreement, he will order such remedial regard to the legality of grants under the
measures as he may deem appropriate. Act as it applies to certain matters (in effect
(c) The determination by the Admin- questions), which are numbered and quoted
istrator will include an analysis and below and answered in the order presented.
explanation of his findings. Number one:
‘‘The grant of funds to a City to purchase
buses and equipment which are intended for
§ 605.34 Remedy where there has been substantial use in the general charter bus
a violation of the agreement. business as well as in the Mass Transpor-
If the Administrator determines, pur- tation type business.’’
suant to this subpart, that there has The Federal Mass Transit Act of 1964 does
not authorize grants to assist in the pur-
been a violation of the terms of the
chase of buses or other equipment for any
agreement, he may bar a grantee or op- service other than urban mass transpor-
erator from the receipt of further fi- tation service. Section 3(a) of the Act limits
nancial assistance for mass transpor- the range of eligible facilities and equipment
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tation facilities and equipment. to ‘‘* * * buses and other rolling stock, and

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Federal Transit Admin., DOT Pt. 605, App. A
other real or personal property needed for an ‘‘Whether a grant of such funds is proper if
efficient and coordinated mass transpor- charter bus use is incidental to mass public
tation system.’’ In turn, ‘‘mass transpor- transportation operations. If so, what is the
tation’’ is defined, in section 9(d)(5) of the definition of incidental use.’’
Act, specifically to exclude charter service. We are advised by HUD that under its leg-
We are advised by the Department of Hous- islative authority, it cannot and does not
ing and Urban Development (HUD) that take charter service requirements into con-
under these provisions, the Department has sideration in any way in evaluating the
limited its grants to the purchase of buses of needs of a local mass transportation system
types suitable to meet the needs of the par- for buses or other equipment.
ticular kind of urban mass transportation HUD further advises that:
proposed to be furnished by the applicant.’’ ‘‘However, as indicated above, we are of
HUD further advises that: the opinion that any lawful use of project
‘‘One of the basic facts of urban mass equipment which does not detract from or
transportation operations is that the need interfere with the urban mass transportation
for rolling stock is far greater during the service for which the equipment is needed
morning and evening rush hours on week- would be deemed an incidental use of such
days than at any other time. For that rea- equipment, and that such use of project
son, any system which has sufficient rolling equipment is entirely permissible under our
stock to meet the weekday rush-hour needs legislation. What uses are in fact incidental,
of its customers must have a substantial under this test, can be determined only on a
amount of equipment standing idle at other case-by-case basis.’’
times, as well as drivers and other personnel In view of what we stated above in answer
being paid when there is little for them to to the first question, the first part of ques-
do. To relieve this inefficient and uneco- tion two is answered in the affirmative.
nomical situation, quite a number of cities As to the second part of the question, in
have offered incidental charter service using Security National Insurance Co. v. Secuoyah
this idle equipment and personnel during the Marina, 246F.2d 830, ‘‘incident’’ is defined as
hours when the same are not needed for reg- meaning ‘‘that which appertains to some-
ularly scheduled runs. Among the cities so thing else which is primary.’’ Thus, we can-
doing are Cleveland, Pittsburgh, Alameda, not say HUD’s definition of incidental use as
Tacoma, Detroit and Dallas. set forth above is unreasonable. Under the
‘‘Such service contributes to the success of Act involved grants may be made to pur-
urban mass transportation operations by chase buses only if the buses are needed for
bringing in additional revenues and pro- an efficient and coordinated mass transpor-
viding full employment to drivers and other tation system. It would appear that if buses
employees. It may in some cases even reduce are purchased in order to meet this need, and
the need for Federal capital grant assistance. are, in fact, used to meet such need, the use
‘‘We do not consider that there is any vio- of such buses for charter service when not
lation of either the letter or the spirit of the needed for mass transportation services
Act as a result of such incidental use f buses would, in effect, be an ‘‘incidental use,’’ inso-
in charter service. To guard against abuses, far as pertinent here. In our opinion such in-
every capital facilities grant contract made cidental use would not violate the provisions
by this Department contains the following of the 1964 Act.
provisions: Number three:
‘‘ ‘Sec. 4. Use of Project Facilities and Equip- ‘‘The grant of funds for mass public trans-
ment—The Public Body agrees that the portation purposes to a City which has ex-
Project facilities and equipment will be used pressed an intent to engage in the general
for the provision of mass transportation charter bus business when such funds would
service within its urban area for the period in effect constitute a subsidy to the City of
of the useful life of such facilities and equip- its intended charter bus operations; i.e. free-
ment. . . . The Public Body further agrees ing Municipal funds with which to purchase
that during the useful life of the Project fa- charter bus equipment.’’
cilities and equipment it will submit to HUD Section 4(a) of the 1954 Act (49 U.S.C.
such financial statements and other data as 1603(a)) provides, in part, as follows:
may be deemed necessary to assure compli- ‘‘* * * The Administrator (now Secretary),
ance with this Section.’ ’’ on the basis of engineering studies, studies of
It is our view that grants may be made to economic feasibility, and data showing the
a city under section 3(a) of the Act to pur- nature and extent of expected utilization of
chase buses needed by the city for an effi- the facilities and equipment, shall estimate
cient and coordinated mass transportation what portion of the cost of a project to be as-
system, even though the city may intend to sisted under section 1602 of this title cannot
use such buses for charter use when the be reasonably financed from revenues—
buses are not needed on regularly scheduled which portion shall hereinafter be called ‘net
runs (i.e. for mass transportation purposes) project cost’. The Federal grant for such a
project shall not exceed two-thirds of the net
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and would otherwise be idle.


Number two: project cost. The remainder of the net

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Pt. 609 49 CFR Ch. VI (10–1–07 Edition)
project cost shall be provided, in cash, from service. However, in view of the purposes of
sources other than Federal funds * * *.’’ the Act involved it is our opinion that a city
It is clear from the legislative history of which has purchased with grant funds buses
the Act involved that the ‘‘revenues’’ to be needed for an efficient mass transportation
considered are mass transportation system system, is not precluded by the act from
revenues including any revenues from inci- using such buses for charter service during
dental charter operations. There is nothing idle or off-peak periods when the buses are
in the language of the Act which requires not needed for regularly scheduled runs. As
HUD to take into account the status of the indicated above, such a use would appear to
general funds of an applicant city in deter- be an incidental use.
mining how much capital grant assistance to The fourth question is answered accord-
extend to that city. ingly.
It should be noted that in a sense nearly As requested, the correspondence enclosed
every capital grant to a city constitutes a with your letter is returned herewith.
partial subsidy of every activity of the city Sincerely yours,
which is supported by tax revenues, since it
frees tax revenues for such other uses. FRANK H. WEITZEL,
Number four: Assistant Comptroller General
‘‘With specific reference to the application of the United States.
of the City of San Diego for funds under its Enclosures:
application to the Department of Housing The Honorable Bob Wilson, House of Rep-
and Urban Development dated June 2, 1966, resentatives.
whether the Act permits a grant to purchase
equipment wherein 25 percent of such equip- MARCH 29, 1976.
ment will be used either exclusively or sub-
stantially in the operation of charter bus INFLATIONARY IMPACT STATEMENT
services.’’
FINAL REGULATIONS ON SCHOOL BUS
As to the City of San Diego’s grant appli-
OPERATIONS
cation, we have been advised by HUD as fol-
lows: I certify that, in accordance with Execu-
‘‘As explained above, the Act authorizes tive Order 11821, dated November 27, 1974, and
assistance only for facilities to be used in Departmental implementing instructions, an
mass transportation service. We could not, Inflationary Impact Statement is not re-
therefore, assist San Diego in purchasing quired for final regulations on School Bus
any equipment to be used ‘exclusively’ in the Operations.
operation of charter bus service. Further-
more, as also explained above, assisted mass ROBERT E. PATRICELLI,
transportation equipment can be used only Federal Mass Transit
incidentally for such charter services. Administrator.
‘‘Whether equipment used ‘substantially’
in such service qualifies under this rule can
be answered only in the light of the specifics
PART 609—TRANSPORTATION FOR
of the San Diego situation. * * * we have al- ELDERLY AND HANDICAPPED
ready, during our preliminary review of the PERSONS
City’s application, disallowed about $150,000
of the proposed project cost which was allo- Sec.
cated to the purchase of eight charter-type 609.1 Purpose.
buses. 609.3 Definitions.
‘‘The final application of the City of San 609.5 Applicability.
Diego is presently under active consideration
609.23 Reduced fare.
by this Department. In particular, we have
requested the City to furnish additional in- APPENDIX A TO PART 609—ELDERLY AND
formation as to the nature and extent of the HANDICAPPED
proposed use, if any, of project facilities and AUTHORITY: 49 U.S.C. 5307(d) and 5308(b); 23
equipment in charter service, so that we can U.S.C. 134, 135 and 142; 29 U.S.C. 794; 49 CFR
further evaluate the application under the 1.51.
criteria above set forth. We have also re-
quested similar information from Mr. SOURCE: 41 FR 18239, Apr. 30, 1976, unless
Fredrick J. Ruane, who has filed a tax- otherwise noted.
payers’ suit (Superior Court for San Diego
County Civil #297329) against the City, con- § 609.1 Purpose.
testing its authority to engage in charter
The purpose of this part is to estab-
bus operations.’’
As indicated above, it is clear that under lish formally the requirements of the
the Act in question grants may not legally Federal Transit Administration (FTA)
be made to purchase buses to be used ‘‘ex- on transportation for elderly and
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clusively’’ in the operation of charter bus handicapped persons.

30

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Federal Transit Admin., DOT Pt. 609, App. A

§ 609.3 Definitions. hours for transportation utilizing or


As used herein: involving the facilities and equipment
Elderly and handicapped persons of the project financed with assistance
means those individuals who, by reason under this section will not exceed one-
of illness, injury, age, congenital mal- half of the rates generally applicable to
function, or other permanent or tem- other persons at peak hours, whether
porary incapacity or disability, includ- the operation of such facilities and
ing those who are nonambulatory equipment is by the applicant or is by
wheelchair-bound and those with semi- another entity under lease or other-
ambulatory capabilities, are unable wise.
without special facilities or special [41 FR 18239, Apr. 30, 1976, as amended at 61
planning or design to utilize mass FR 19562, May 2, 1996]
transportation facilities and services
as effectively as persons who are not so APPENDIX A TO PART 609—ELDERLY AND
affected. HANDICAPPED
§ 609.5 Applicability. The definitions of the term elderly and
handicapped as applied under FTA’s elderly
This part, which applies to projects and handicapped half-fare program (49 CFR
approved by the Federal Transit Ad- part 609) shall apply to this rule. This per-
ministrator on or after May 31, 1976, mits a broader class of handicapped persons
applies to all planning, capital, and op- to take advantage of the exception than
erating assistance projects receiving would be permitted under the more restric-
Federal financial assistance under sec- tive definition applied to the non-discrimina-
tions 5307 or 5308 of the Federal transit tion provisions of the Department’s section
laws (49 U.S.C. Chapter 53), and non- 504 program (49 CFR 27.5), which includes
highway public mass transportation only handicapped persons otherwise unable
to use the recipient’s bus service for the gen-
projects receiving Federal financial as-
eral public.
sistance under: (1) Subsection (a) or (c) Accordingly, for the purposes of this part,
of section 142 of title 23, United States the definition of elderly persons may be deter-
Code; and (2) paragraph (4) of sub- mined by the FTA recipient but must, at a
section (e) of section 103, title 23, minimum, include all persons 65 years of age
United States Code. However, under or over.
certain circumstances evident in Similarly, the definition of handicapped
§§ 609.13 through 609.21, the latter sec- persons is derived from the existing regula-
tions apply to fixed facilities and vehi- tions at 49 CFR 609.3 which provide that
cles included in projects approved be- Handicapped persons means those individuals
who, by reason of illness, injury, age, con-
fore May 31, 1976. Sections in this part
genital malfunction, or other permanent or
on capital assistance applications, temporary incapacity or disability, includ-
fixed facilities, and vehicles apply ex- ing those who are nonambulatory wheel-
pressly to capital assistance projects chair-bound and those with semi-ambulatory
receiving Federal financial assistance capabilities, are unable without special fa-
under any of the above statutes. cilities or special planning or design to uti-
lize mass transportation facilities and serv-
[41 FR 18239, Apr. 30, 1976, as amended at 61 ices as effectively as persons who are not so
FR 19562, May 2, 1996] affected.
To assist in understanding how the defini-
§ 609.23 Reduced fare.
tions might be applied to administration of
Applicants for financial assistance the charter rule, the following questions and
under section 5307 of the Federal tran- answers previously published by FTA for the
sit laws (49 U.S.C. Chapter 53), must, as half-fare program in FTA C 9060.1, April 20,
a condition to receiving such assist- 1978, are reproduced:
ance, give satisfactory assurances, in 1. Question: Can the definition of elderly or
such manner and form as may be re- handicapped be restricted on the basis of
residency, citizenship, income, employment
quired by the Federal Transit Adminis- status, or the ability to operate an auto-
trator and in accordance with such mobile?
terms and conditions as the Federal Answer: No. Section 5(m) is applicable to
Transit Administrator may prescribe, elderly and handicapped persons. It is FTA’s
that the rates charged elderly and policy that such categorical exceptions are
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handicapped persons during non-peak not permitted under the Act.

31

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Pt. 611 49 CFR Ch. VI (10–1–07 Edition)
2. Question: Can the eligibility of temporary temporary handicaps may not be recognized
handicaps be restricted on the basis of their as handicapped by social service agencies.
duration? 9. Question: Can the operator require that
Answer: Handicaps of less than 90 days du- elderly and handicapped persons come to a
ration may be excluded. Handicaps of more central office to register for an off-peak half-
than 90 days duration must be included. fare program?
3. Question: Can the definition of handicap Answer: FTA strongly encourages opera-
be limited in any way? tors to develop procedures which maximize
Answer: FTA has allowed applicants to ex- the availability of off-peak half-fares to eli-
clude some conditions which appear to meet gible individuals. Requiring individuals to
the functional definition of handicap pro- travel to a single office which may be incon-
vided in section 5302(a)(5) of the Federal veniently located is not consistent with this
transit laws (49 U.S.C. Chapter 53). These in- policy, although it is not strictly prohibited.
clude pregnancy, obesity, drug or alcohol ad- FTA reserves the right to review such local
diction, and certain conditions which do not requirements on a case-by-case basis.
fall under the statutory definition (e.g., loss 10. Question: Must ID cards issued by one
of a finger, some chronic heart or lung condi- operator be transferable to another?
tions, controlled epilepsy, etc.). Individuals
Answer: No. However, FTA encourages con-
may also be excluded whose handicap in-
sistency among off-peak procedures and the
volves a contagious disease or poses a danger
maximizing of availability to eligible indi-
to the individual or other passengers. Other
viduals, especially among operators within a
exceptions should be reviewed on a case-by-
single urban area. Nevertheless, each oper-
case basis.
ator is permitted to require its own certifi-
4. Question: Is blindness considered a handi-
cation of individuals using its service.
cap under Section 5(m)?
Answer: Yes. 11. Question: Can an operator require an el-
5. Question: Is deafness considered a handi- derly or handicapped person to submit to a
cap under section 5(m)? procedure certifying their eligibility before
Answer: As a rule, no, because deafness, es- they can receive half-fare? For example, if
pecially on buses, is not considered a dis- an operator requires eligible individuals to
ability which requires special planning, fa- have a special ID card, can the half-fare be
cilities, or design. However, deafness is rec- denied to an individual who can otherwise
ognized as a handicap in the Department of give proof of age, etc, but does not have an
Transportation’s ADA regulation, and appli- ID card?
cants for Section 5 assistance are encouraged Answer: Yes, although FTA does not en-
to include the deaf as eligible for off-peak dorse this practice.
half-fares. [53 FR 53356, Dec. 30, 1988. Redesignated and
6. Question: Is mental illness considered a amended at 61 FR 19562, May 2, 1996]
handicap under section 5(m)?
Answer: As a rule, no, because of the dif-
ficulty in establishing criteria or guidelines PART 611—MAJOR CAPITAL
for defining eligibility. However, FTA en- INVESTMENT PROJECTS
courages applicants to provide the broadest
possible coverage in defining eligible handi-
Sec.
caps, including mental illness.
611.1 Purpose and contents.
7. Question: Can operators delegate the re-
611.3 Applicability.
sponsibility for certifying individuals as eli-
gible to other agencies? 611.5 Definitions.
Answer: Yes, provided that such agencies 611.7 Relation to planning and project de-
administer the certification of individuals in velopment processes.
an acceptable manner and are reasonably ac- 611.9 Project justification criteria for
cessible to the elderly and handicapped. grants and loans for fixed guideway sys-
Many operators currently make extensive tems.
use of social service agencies (both public 611.11 Local financial commitment criteria.
and private) to identify and certify eligible 611.13 Overall project ratings.
individuals. APPENDIX A TO PART 611—DESCRIPTION OF
8. Question: Can operators require elderly MEASURES FOR PROJECT EVALUATION.
and handicapped individuals to be recognized
by any existing agency (e.g., require that AUTHORITY: 49 U.S.C. 5309; 49 CFR 1.51
handicapped persons be receiving Social SOURCE: 65 FR 76880, Dec. 7, 2000, unless
Service or Veterans’ Administration bene- otherwise noted.
fits)?
Answer: Recognition by such agencies is § 611.1 Purpose and contents.
commonly used to certify eligible individ-
uals. However, such recognition should not (a) This part prescribes the process
be a mandatory prerequisite for eligibility. that applicants must follow to be con-
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Federal Transit Admin., DOT § 611.5

grants and loans for new fixed guide- aged to submit data for project evalua-
way systems or extensions to existing tion as described in this part.
systems (‘‘new starts’’). Also, this part (2) Such projects are still subject to
prescribes the procedures used by FTA the requirements of 23 CFR part 450
to evaluate proposed new starts and 23 CFR part 771.
projects as required by 49 U.S.C. (3) This part does not apply to
5309(e), and the scheduling of project projects for which a Full Funding
reviews required by 49 U.S.C. 5328(a). Grant Agreement (FFGA) has already
(b) This part defines how the results been executed.
of the evaluation described in para- (c) Consistent with 49 U.S.C.
graph (a) of this section will be used to: 5309(e)(8)(B), FTA will make project ap-
(1) Approve entry into preliminary proval decisions on proposed projects
engineering and final design, as re- using expedited procedures as appro-
quired by 49 U.S.C. 309(e)(6); priate, for proposed projects that are:
(2) Rate projects as ‘‘highly rec- (1) Located in a nonattainment area;
ommended,’’ ‘‘recommended,’’ or ‘‘not (2) Transportation control measures
recommended,’’ as required by 49 as defined by the Clean Air Act (42
U.S.C. 5309(e)(6); U.S.C. 7401 et seq.); and
(3) Assign individual ratings for each
(3) Required to carry out a State Im-
of the project justification criteria
plementation Plan.
specified in 49 U.S.C. 5309(e)(1)(B) and
(C); § 611.5 Definitions.
(4) Determine project eligibility for
Federal funding commitments, in the The definitions established by Titles
form of Full Funding Grant Agree- 12 and 49 of the United States Code, the
ments; Council on Environmental Quality’s
(5) Support funding recommendations regulation at 40 CFR parts 1500–1508,
for this program for the Administra- and FHWA–FTA regulations at 23 CFR
tion’s annual budget request; and parts 450 and 771 are applicable. In ad-
(6) Fulfill the reporting requirements dition, the following definitions apply:
under 49 U.S.C. 5309(o)(1), Funding Lev- Alternatives analysis is a corridor
els and Allocations of Funds, Annual level analysis which evaluates all rea-
Report, and 5309(o)(2), Supplemental sonable mode and alignment alter-
Report on New Starts. natives for addressing a transportation
(c) The information collected and problem, and results in the adoption of
ratings developed under this part will a locally preferred alternative by the
form the basis for the annual reports to appropriate State and local agencies
Congress, required by 49 U.S.C. and official boards through a public
5309(o)(1) and (2). process.
Baseline alternative is the alternative
§ 611.3 Applicability. against which the proposed new starts
(a) This part applies to all proposals project is compared to develop project
for Federal capital investment funds justification measures. Relative to the
under 49 U.S.C. 5309 for new transit no build alternative, it should include
fixed guideway systems and extensions transit improvements lower in cost
to existing systems. than the new start which result in a
(b) Projects described in paragraph better ratio of measures of transit mo-
(a) of this section are not subject to bility compared to cost than the no
evaluation under this part if the total build alternative.
amount of funding from 49 U.S.C. 5309 BRT means bus rapid transit.
will be less than $25 million, or if such Bus Rapid Transit refers to coordi-
projects are otherwise exempt from nated improvements in a transit sys-
evaluation by statute. tem’s infrastructure, equipment, oper-
(1) Exempt projects must still be ations, and technology that give pref-
rated by FTA for purposes of entering erential treatment to buses on fixed
into a Federal funding commitment as guideways and urban roadways. The in-
required by 49 U.S.C. 5309(e)(7). Spon- tention of Bus Rapid Transit is to re-
sors who believe their projects to be ex- duce bus travel time, improve service
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§ 611.7 49 CFR Ch. VI (10–1–07 Edition)

users, and ultimately, increase bus rid- project costs, benefits and impacts are
ership. refined, NEPA requirements are com-
Extension to existing fixed-guideway pleted, project management plans and
system means a project to extend an ex- fleet management plans are further de-
isting fixed guideway system. veloped, and local funding commit-
FFGA means a Full Funding Grant ments are put in place.
Agreement. Secretary means the Secretary of
Final Design is the final phase of Transportation.
project development, and includes (but TEA–21 means the Transportation
is not limited to) the preparation of Equity Act for the 21st Century.
final construction plans (including con-
struction management plans), detailed § 611.7 Relation to planning and
specifications, construction cost esti- project development processes.
mates, and bid documents. All new start projects proposed for
Fixed guideway system means a mass
funding assistance under 49 USC 5309
transportation facility which utilizes
must emerge from the metropolitan
and occupies a separate right-of-way,
and Statewide planning process, con-
or rail line, for the exclusive use of
sistent with 23 CFR part 450. To be eli-
mass transportation and other high oc-
gible for FTA capital investment fund-
cupancy vehicles, or uses a fixed cat-
ing, a proposed project must be based
enary system and a right of way usable
on the results of alternatives analysis
by other forms of transportation. This
and preliminary engineering.
includes, but is not limited to, rapid
rail, light rail, commuter rail, auto- (a) Alternatives Analysis. (1) To be eli-
mated guideway transit, people mov- gible for FTA capital investment fund-
ers, ferry boat service, and fixed-guide- ing for a major fixed guideway transit
way facilities for buses (such as bus project, local project sponsors must
rapid transit) and other high occu- perform an alternatives analysis.
pancy vehicles. A new fixed guideway (2) The alternatives analysis develops
system means a newly-constructed fixed information on the benefits, costs, and
guideway system in a corridor or align- impacts of alternative strategies to ad-
ment where no such system exists. dress a transportation problem in a
FTA means the Federal Transit Ad- given corridor, leading to the adoption
ministration. of a locally preferred alternative.
Full Funding Grant Agreement means (3) The alternative strategies evalu-
an instrument that defines the scope of ated in an alternatives analysis must
a project, the Federal financial con- include a no-build alternative, a base-
tribution, and other terms and condi- line alternative, and an appropriate
tions. number of build alternatives. Where
Major transit investment means any project sponsors believe the no-build
project that involves the construction alternative fulfills the requirements
of a new fixed guideway system or ex- for a baseline alternative, FTA will de-
tension of an existing fixed guideway termine whether to require a separate
system for use by mass transit vehi- baseline alternative on a case-by-case
cles. basis.
NEPA process means those procedures (4) The locally preferred alternative
necessary to meet the requirements of must be selected from among the eval-
the National Environmental Policy Act uated alternative strategies and for-
of 1969, as amended (NEPA), at 23 CFR mally adopted and included in the met-
part 771; the NEPA process is com- ropolitan planning organization’s fi-
pleted when a Record of Decision nancially-constrained long-range re-
(ROD) or Finding of No Significant Im- gional transportation plan.
pact (FONSI) is issued. (b) Preliminary Engineering. Con-
New start means a new fixed guideway sistent with 49 USC 5309(e)(6) and
system, or an extension to an existing 5328(a)(2), FTA will approve/disapprove
fixed guideway system. entry of a proposed project into pre-
Preliminary Engineering is the process liminary engineering within 30 days of
by which the scope of the proposed receipt of a formal request from the
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Federal Transit Admin., DOT § 611.7

(1) A proposed project can be consid- (2) FTA’s approval will be based on
ered for advancement into preliminary the results of its evaluation as de-
engineering only if: scribed in Parts §§ 611.9–611.13 of this
(i) Alternatives analysis has been Rule.
completed (3) At a minimum, a proposed project
(ii) The proposed project is adopted must receive an overall rating of ‘‘rec-
as the locally preferred alternative by ommended’’ to be approved for entry
the Metropolitan Planning Organiza- into final design.
tion into its financially constrained (4) Consistent with the Government
metropolitan transportation plan; Performance and Results Act of 1993,
(iii) Project sponsors have dem- project sponsors seeking FFGAs shall
onstrated adequate technical capa- submit a complete plan for collection
bility to carry out preliminary engi- and analysis of information to identify
neering for the proposed project; and the impacts of the new start project
(iv) All other applicable Federal and and the accuracy of the forecasts pre-
FTA program requirements have been pared during development of the
met. project.
(2) FTA’s approval will be based on (i) The plan shall provide for: Collec-
the results of its evaluation as de- tion of ‘‘before’’ data on the current
scribed in §§ 611.9–611.13. transit system; documentation of the
(3) At a minimum, a proposed project ‘‘predicted’’ scope, service levels, cap-
must receive an overall rating of ‘‘rec- ital costs, operating costs, and rider-
ommended’’ to be approved for entry ship of the project; collection of
into preliminary engineering. ‘‘after’’ data on the transit system two
(4) This part does not in any way re- years after opening of the new start
voke prior FTA approvals to enter pre- project; and analysis of the consistency
liminary engineering made prior to of ‘‘predicted’’ project characteristics
February 5, 2001. with the ‘‘after’’ data.
(5) Projects approved to advance into (ii) The ‘‘before’’ data collection
preliminary engineering receive blan- shall obtain information on transit
ket pre-award authority to incur service levels and ridership patterns,
project costs for preliminary engineer- including origins and destinations, ac-
ing activities prior to grant approval. cess modes, trip purposes, and rider
(i) This pre-award authority does not characteristics. The ‘‘after’’ data col-
constitute a commitment by FTA that lection shall obtain analogous informa-
future Federal funds will be approved tion on transit service levels and rider-
for this project. ship patterns, plus information on the
(ii) All Federal requirements must be as-built scope and capital costs of the
met prior to incurring costs in order to new start project.
retain eligibility of the costs for future (iii) The analysis of this information
FTA grant assistance. shall describe the impacts of the new
(c) Final Design. Consistent with 49 start project on transit services and
USC 5309(e)(6) and 5328(a)(3), FTA will transit ridership, evaluate the consist-
approve/disapprove entry of a proposed ency of ‘‘predicted’’ and actual project
project into final design within 120 characteristics and performance, and
days of receipt of a formal request from identify sources of differences between
the project sponsor(s). ‘‘predicted’’ and actual outcomes.
(1) A proposed project can be consid- (iv) For funding purposes, prepara-
ered for advancement into final design tion of the plan for collection and anal-
only if: ysis of data is an eligible part of the
(i) The NEPA process has been com- proposed project.
pleted; (5) Project sponsors shall collect data
(ii) Project sponsors have dem- on the current system, according to
onstrated adequate technical capa- the plan required under § 611.7(c)(4) as
bility to carry out final design for the approved by FTA, prior to the begin-
proposed project; and ning of construction of the proposed
(iii) All other applicable Federal and new start. Collection of this data is an
FTA program requirements have been eligible part of the proposed project for
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met. funding purposes.

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§ 611.7 49 CFR Ch. VI (10–1–07 Edition)

(6) This part does not in any way re- as defined, to the point of initiation of
voke prior FTA approvals to enter final revenue operations, and to absorb any
design that were made prior to Feb- additional costs incurred or neces-
ruary 5, 2001. sitated;
(7) Projects approved to advance into (iii) FTA and the grantee will estab-
final design receive blanket pre-award lish a schedule for anticipating Federal
authority to incur project costs for contributions during the final design
final design activities prior to grant and construction period; and
approval. (iv) Specific annual contributions
(i) This pre-award authority does not
under the FFGA will be subject to the
extend to right of way acquisition or
availability of budget authority and
construction, nor does it constitute a
commitment by FTA that future Fed- the ability of the grantee to use the
eral funds will be approved for this funds effectively.
project. (5) The total amount of Federal obli-
(ii) All Federal requirements must be gations under Full Funding Grant
met prior to incurring costs in order to Agreements and potential obligations
retain eligibility of the costs for future under Letters of Intent will not exceed
FTA grant assistance. the amount authorized for new starts
(d) Full funding grant agreements. (1) under 49 U.S.C. § 5309.
FTA will determine whether to execute (6) FTA may also make a ‘‘contin-
an FFGA based on: gent commitment,’’ which is subject to
(i) The evaluations and ratings estab- future congressional authorizations
lished by this rule; and appropriations, pursuant to 49
(ii) The technical capability of U.S.C. 5309(g), 5338(b), and 5338(h).
project sponsors to complete the pro- (7) Consistent with the Government
posed new starts project; and Performance and Results Act of 1993
(iii) A determination by FTA that no (GPRA), the FFGA will require imple-
outstanding issues exist that could mentation of the data collection plan
interfere with successful implementa-
prepared in accordance with
tion of the proposed new starts project.
§ 611.7(c)(4):
(2) An FFGA shall not be executed
for a project that is not authorized for (i) Prior to the beginning of construc-
final design and construction by Fed- tion activities the grantee shall collect
eral law. the ‘‘before’’ data on the existing sys-
(3) FFGAs will be executed only for tem, if such data has not already been
those projects which: collected as part of final design, and
(i) Are rated as ‘‘recommended’’ or document the predicted characteristics
‘‘highly recommended;’’ and performance of the project.
(ii) Have completed the appropriate (ii) Two years after the project opens
steps in the project development proc- for revenue service, the grantee shall
ess; collect the ‘‘after’’ data on the transit
(iii) Meet all applicable Federal and system and the new start project, de-
FTA program requirements; and termine the impacts of the project,
(iv) Are ready to utilize Federal new analyze the consistency of the ‘‘pre-
starts funds, consistent with available dicted’’ performance of the project
program authorization. with the ‘‘after’’ data, and report the
(4) In any instance in which FTA de- findings and supporting data to FTA.
cides to provide financial assistance (iii) For funding purposes, collection
under section 5309 for construction of a of the ‘‘before’’ data, collection of the
new start project, FTA will negotiate
‘‘after’’ data, and the development and
an FFGA with the grantee during final
reporting of findings are eligible parts
design of that project. Pursuant to the
terms and conditions of the FFGA: of the proposed project.
(i) A maximum level of Federal fi- (8) This part does not in any way
nancial contribution under the section alter, revoke, or require re-evaluation
5309 new starts program will be fixed; of existing FFGAs that were issued
(ii) The grantee will be required to prior to February 5, 2001.
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Federal Transit Admin., DOT § 611.11

§ 611.9 Project justification criteria for (c) In evaluating proposed new starts
grants and loans for fixed guideway projects under these criteria:
systems. (1) As a candidate project proceeds
In order to approve a grant or loan through preliminary engineering and
for a proposed new starts project under final design, a greater degree of cer-
49 U.S.C. 5309, and to approve entry tainty is expected with respect to the
into preliminary engineering and final scope of the project and a greater level
design as required by section 5309(e)(6), of commitment is expected with re-
FTA must find that the proposed spect to land use.
project is justified as described in sec- (2) For the criteria under § 611.9(b)(1)–
tion 5309(e)(1)(B). (4), the proposed new start will be com-
(a) To make the statutory evalua- pared to the baseline alternative.
tions and assign ratings for project jus- (d) In evaluating proposed new starts
tification, FTA will evaluate informa- projects under these criteria, the fol-
tion developed locally through alter- lowing factors shall be considered:
natives analyses and refined through (1) The direct and indirect costs of
preliminary engineering and final de- relevant alternatives;
sign. (2) Factors such as congestion relief,
(1) The method used to make this de- improved mobility, air pollution, noise
termination will be a multiple measure pollution, energy consumption, and all
approach in which the merits of can- associated ancillary and mitigation
didate projects will be evaluated in costs necessary to carry out each alter-
terms of each of the criteria specified native analyzed, and recognize reduc-
by this section. tions in local infrastructure costs
(2) The measures for these criteria achieved through compact land use de-
are specified in Appendix A to this velopment;
rule. (3) Existing land use, mass transpor-
(3) The measures will be applied to tation supportive land use policies, and
the project as it has been proposed to future patterns;
FTA for new starts funding under 49 (4) The degree to which the project
U.S.C. 5309. increases the mobility of the mass
(4) The ratings for each of the cri- transportation dependent population or
teria will be expressed in terms of de- promotes economic development;
scriptive indicators, as follows: ‘‘high,’’ (5) Population density and current
‘‘medium-high,’’ ‘‘medium,’’ ‘‘low-me- transit ridership in the corridor;
dium,’’ or ‘‘low.’’ (6) The technical capability of the
(b) The criteria are as follows: grant recipient to construct the
(1) Mobility Improvements. project;
(2) Environmental Benefits. (7) Differences in local land, con-
(3) Operating Efficiencies. struction, and operating costs; and
(4) Transportation System User Ben- (8) Other factors as appropriate.
efits (Cost-Effectiveness). (e) FTA may amend the measures for
(5) Existing land use, transit sup- these criteria, pending the results of
portive land use policies, and future ongoing studies regarding transit ben-
patterns. efit evaluation methods.
(6) Other factors. Additional factors, (f) The individual ratings for each of
including but not limited to: the criteria described in this section
(i) The degree to which the programs will be combined into a summary rat-
and policies (e.g., parking policies, ing of ‘‘high,’’ ‘‘medium-high,’’ ‘‘me-
etc.) are in place as assumed in the dium,’’ ‘‘low-medium,’’ or ‘‘low’’ for
forecasts, project justification. ‘‘Other factors’’
(ii) Project management capability, will be considered as appropriate.
including the technical capability of
the grant recipient to construct the § 611.11 Local financial commitment
project, and criteria.
(iii) Additional factors relevant to In order to approve a grant or loan
local and national priorities and rel- under 49 U.S.C. 5309, FTA must find
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§ 611.13 49 CFR Ch. VI (10–1–07 Edition)

by an acceptable degree of local finan- section 5309(o)(1), and as required for


cial commitment, as required by sec- FTA approvals to enter into prelimi-
tion 5309(e)(1)(C). The local financial nary engineering, final design, or
commitment to a proposed project will FFGAs.
be evaluated according to the following (c) These ratings will be used to:
measures: (1) approve advancement of a pro-
(a) The proposed share of project cap- posed project into preliminary engi-
ital costs to be met using funds from neering and final design;
sources other than the section 5309 new (2) Approve projects for FFGAs;
starts program, including both the (3) Support annual funding rec-
non-Federal match required by Federal ommendations to Congress in the an-
law and any additional capital funding nual report on funding levels and allo-
(‘‘overmatch’’), and the degree to cations of funds required by 49 U.S.C.
which planning and preliminary engi- 5309(o)(1); and
neering activities have been carried (4) For purposes of the supplemental
out without funding from the section report on new starts, as required under
5309 new starts program; section 5309(o)(2).
(b) The stability and reliability of (d) FTA will assign overall ratings
the proposed capital financing plan for for proposed new starts projects based
the new starts project; and on the following conditions:
(c) The stability and reliability of (1) Projects will be rated as ‘‘rec-
the proposed operating financing plan ommended’’ if they receive a summary
to fund operation of the entire transit rating of at least ‘‘medium’’ for both
system as planned over a 20-year plan- project justification (§ 611.9) and local
ning horizon. financial commitment (§ 611.11);
(d) For each proposed project, ratings (2) Projects will be rated as ‘‘highly
for paragraphs (b) and (c) of this sec- recommended’’ if they receive a sum-
tion will be reported in terms of de- mary rating higher than ‘‘medium’’ for
scriptive indicators, as follows: ‘‘high,’’ both local financial commitment and
‘‘medium-high,’’ ‘‘medium,’’ ‘‘low-me- project justification.
dium,’’ or ‘‘low.’’ For paragraph (a) of (3) Projects will be rated as ‘‘not rec-
this section, the percentage of Federal ommended’’ if they do not receive a
funding sought from 49 U.S.C. § 5309 summary rating of at least ‘‘medium’’
will be reported. for both project justification and local
(e) The summary ratings for each financial commitment.
measure described in this section will
be combined into a summary rating of APPENDIX A TO PART 611—DESCRIPTION
‘‘high,’’ ‘‘medium-high,’’ ‘‘medium,’’ OF MEASURES USED FOR PROJECT
‘‘low-medium,’’ or ‘‘low’’ for local fi- EVALUATION.
nancial commitment.
PROJECT JUSTIFICATION
§ 611.13 Overall project ratings. FTA will use several measures to evaluate
(a) The summary ratings developed candidate new starts projects according to
for project justification local financial the criteria established by 49 U.S.C.
commitment (§ § 611.9 and 611.11) will 5309(e)(1)(B). These measures have been de-
form the basis for the overall rating for veloped according to the considerations iden-
tified at 49 U.S.C. 5309(e)(3) (‘‘Project Jus-
each project. tification’’), consistent with Executive Order
(b) FTA will assign overall ratings of 12893. From time to time, FTA has published
‘‘highly recommended,’’ ‘‘rec- technical guidance on the application of
ommended,’’ and ‘‘not recommended,’’ these measures, and the agency expects it
as required by 49 U.S.C. 5309(e)(6), to will continue to do so. Moreover, FTA may
each proposed project. well choose to amend these measures, pend-
(1) These ratings will indicate the ing the results of ongoing studies regarding
overall merit of a proposed new starts transit benefit evaluation methods. The first
four criteria listed below assess the benefits
project at the time of evaluation. of a proposed new start project by comparing
(2) Ratings for individual projects the project to the baseline alternative.
will be updated annually for purposes Therefore, the baseline alternative must be
of the annual report on funding levels defined so that comparisons with the new
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and allocations of funds required by start project isolate the costs and benefits of

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Federal Transit Admin., DOT Pt. 611, App. A
the major transit investment. At a min- times faced by all users of the transportation
imum, the baseline alternative must include system.
in the project corridor all reasonable cost-ef- (2) The absolute number of existing low in-
fective transit improvements short of invest- come households located within 1⁄2-mile of
ment in the new start project. Depending on boarding points associated with the proposed
the circumstances and through prior agree- system increment.
ment with FTA, the baseline alternative can (3) The absolute number of existing jobs
be defined appropriately in one of three within 1⁄2-mile of boarding points associated
ways. First, where the adopted financially with the proposed system increment.
constrained regional transportation plan in- (b) Environmental Benefits.
cludes within the corridor all reasonable
(1) The forecast change in criteria pollut-
cost-effective transit improvements short of
ant emissions and in greenhouse gas emis-
the new start project, a no-build alternative
sions, ascribable to the proposed new invest-
that includes those improvements may serve
ment, calculated in terms of annual tons for
as the baseline. Second, where additional
each criteria pollutant or gas (forecast year),
cost-effective transit improvements can be
compared to the baseline alternative;
made beyond those provided by the adopted
plan, the baseline will add those cost-effec- (2) The forecast net change per year (fore-
tive transit improvements. Third, where the cast year) in the regional consumption of en-
proposed new start project is part of a ergy, ascribable to the proposed new invest-
multimodal alternative that includes major ment, expressed in British Thermal Units
highway components, the baseline alter- (BTU), compared to the baseline alternative;
native will be the preferred multimodal al- and
ternative without the new start project and (3) Current Environmental Protection
associated transit services. Prior to sub- Agency designations for the region’s compli-
mittal of a request to enter preliminary en- ance with National Ambient Air Quality
gineering for the new start project, grantees Standards.
must obtain FTA approval of the definition (c) Operating Efficiencies. The forecast
of the baseline alternative. Consistent with change in operating cost per passenger-mile
the requirement that differences between the (forecast year), for the entire transit system.
new start project and the baseline alter- The new start will be compared to the base-
native measure only the benefits and costs of line alternative.
the project itself, planning factors external (d) Transportation System User Benefits
to the new start project and its supporting (Cost-Effectiveness).
bus service must be the same for both the (1) The cost effectiveness of a proposed
baseline and new start project alternatives. project shall be evaluated according to a
Consequently, the highway and transit net- measure of transportation system user bene-
works defined for the analysis must be the fits, based on a multimodal measure of per-
same outside the corridor for which the new ceived travel times faced by all users of the
start project is proposed. Further, policies transportation system, for the forecast year,
affecting travel demand and travel costs, divided by the incremental cost of the pro-
such as land use, transit fares and parking posed project. Incremental costs and benefits
costs, must be applied consistently to both will be calculated as the differences between
the baseline alternative and the new start the proposed new start and the baseline al-
project alternative. The fifth criterion, ‘‘ex- ternative.
isting land use, transit supportive land use (2) Until the effective date of the transpor-
policies, and future patterns,’’ reflects the tation system user benefits measure of cost
importance of transit-supportive local land effectiveness, cost effectiveness will be com-
use and related conditions and policies as an puted as the incremental costs of the pro-
indicator of ultimate project success. posed project divided by its incremental
(a) Mobility Improvements. transit ridership, as compared to the base-
(1) The aggregate travel time savings in line alternative.
the forecast year anticipated from the new (i) Costs include the forecast annualized
start project compared to the baseline alter- capital and annual operating costs of the en-
native. This measure sums the travel time tire transit system.
savings accruing to travelers projected to (ii) Ridership includes forecast total an-
use transit in the baseline alternative, trav- nual ridership on the entire transit system,
elers projected to shift to transit because of excluding transfers.
the new start project, and non-transit users (e) Existing land use, transit supportive
in the new start project who would benefit land use policies, and future patterns. Exist-
from reduced traffic congestion. ing land use, transit-supportive land use
(i) After September 1, 2001, FTA will em- policies, and future patterns shall be rated
ploy a revised measure of travel benefits ac- by evaluating existing conditions in the cor-
cruing to travelers. ridor and the degree to which local land use
(ii) The revised measure will be based on a policies are likely to foster transit sup-
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multi-modal measure of perceived travel portive land use, measured in terms of the

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Pt. 613 49 CFR Ch. VI (10–1–07 Edition)
kinds of policies in place, and the commit- taken fixed guideway systems and extensions
ment to these policies. The following factors that are related to the proposed project
will form the basis for this evaluation: under review, from sources other than the
(1) Existing land use; section 5309 new starts program (FTA’s in-
(2) Impact of proposed new starts project tent is to recognize that a region’s local fi-
on land use; nancial commitment to fixed guideway sys-
(3) Growth-management policies; tems and extensions may not be limited to a
(4) Transit-supportive corridor policies; single project).
(5) Supportive zoning regulations near (b) The stability and reliability of the pro-
transit stations; posed capital financing plan, according to:
(6) Tools to implement land use policies; (i) The stability, reliability, and level of
(7) The performance of land use policies; commitment of each proposed source of local
and match, including inter-governmental grants,
(8) Existing and planned pedestrian facili- tax sources, and debt obligations, with an
ties, including access for persons with dis- emphasis on availability within the project
abilities. development timetable;
(f) Other factors. Other factors that will be (ii) Whether adequate provisions have been
considered when evaluating projects for made to cover unanticipated cost overruns
funding commitments include, but are not and funding shortfalls; and
limited to: (iii) Whether adequate provisions have
(1) Multimodal emphasis of the locally pre- been made to fund the capital needs of the
ferred investment strategy, including the entire transit system as planned, including
proposed new start as one element; key station plans as required under 49 CFR
(2) Environmental justice considerations 37.47 and 37.51, over a 20-year planning hori-
and equity issues, zon period.
(3) Opportunities for increased access to (c) The stability and reliability of the pro-
employment for low income persons, and posed operating financing plan to fund oper-
Welfare-to-Work initiatives; ation of the entire transit system as planned
(4) Livable Communities initiatives and over a 20-year planning horizon.
local economic activities;
(5) Consideration of alternative land use
development scenarios in local evaluation PART 613—PLANNING ASSISTANCE
and decision making for the locally preferred AND STANDARDS
transit investment decision;
(6) Consideration of innovative financing, Subpart A—Metropolitan Transportation
procurement, and construction techniques,
including design-build turnkey applications; Planning and Programming
and Sec.
(7) Additional factors relevant to local and 613.100 Metropolitan transportation plan-
national priorities and to the success of the ning and programming.
project, such as Empowerment Zones,
Brownfields, and FTA’s Bus Rapid Transit Subpart B—Statewide Transportation
Demonstration Program.
Planning and Programming
LOCAL FINANCIAL COMMITMENT
613.200 Statewide transportation planning
FTA will use the following measures to and programming.
evaluate the local financial commitment to
a proposed project: Subpart C—Coordination of Federal and
(a) The proposed share of project capital Federally Assisted Programs and Projects
costs to be met using funds from sources
other than the 49 U.S.C. 5309 new starts pro- 613.300 Coordination of Federal and feder-
gram, including both the local match re- ally assisted programs and projects.
quired by Federal law and any additional AUTHORITY: 23 U.S.C. 134, 135, and 217(g); 42
capital funding (‘‘overmatch’’). Consider- U.S.C. 3334, 4233, 4332, 7410 et seq; 49 U.S.C.
ation will be given to: 5303–5306, 5323(k); and 49 CFR 1.48(b), 1.51(f)
(i) The use of innovative financing tech- and 21.7(a).
niques, as described in the May 9, 1995, FED-
ERAL REGISTER notice on FTA’s Innovative Fi-
nancing Initiative (60 FR 24682); Subpart A—Metropolitan Transpor-
(ii) The use of ‘‘flexible funds’’ as provided tation Planning and Program-
under the CMAQ and STP programs; ming
(iii) The degree to which alternatives anal-
ysis and preliminary engineering activities § 613.100 Metropolitan transportation
were carried out without funding from the planning and programming.
§ 5309 new starts program; and
(iv) The actual percentage of the cost of re- The regulations in 23 CFR 450, sub-
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cently-completed or simultaneously under- part C, shall be followed in complying

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Federal Transit Admin., DOT § 622.301

with the requirements of this subpart. transportation facilities and equip-


The definitions in 23 CFR 450, subpart ment.
A, shall apply.
[72 FR 7285, Feb. 14, 2007] PART 622—ENVIRONMENTAL IM-
PACT AND RELATED PROCE-
Subpart B—Statewide Transpor- DURES
tation Planning and Program- Subpart A—Environmental Procedures
ming
Sec.
§ 613.200 Statewide transportation 622.101 Cross-reference to procedures.
planning and programming.
Subpart B [Reserved]
The regulations in 23 CFR 450, sub-
part B, shall be followed in complying Subpart C—Requirements for Energy
with the requirements of this subpart. Assessments
The definitions in 23 CFR 450, subpart
622.301 Buildings.
A, shall apply.
[72 FR 7285, Feb. 14, 2007] Subpart A—Environmental
Procedures
Subpart C—Coordination of Fed-
eral and Federally Assisted AUTHORITY: 42 U.S.C. 4321 et seq.; 49 U.S.C.
Programs and Projects 303(c), 5301(e), 5323, and 5324; 40 CFR 1.51.

§ 613.300 Coordination of Federal and § 622.101 Cross-reference to proce-


federally assisted programs and dures.
projects. The procedures for complying with
The coordination of Federal and fed- the National Environmental Policy Act
erally assisted programs and projects of 1969, as amended (42 U.S.C. 4321 et
implementing OMB revised Circular seq.), and related statutes, regulations,
No. A–95, which are set forth in 23 CFR and orders are set forth in part 771 of
part 420, subpart C, are incorporated title 23 of the Code of Federal Regula-
into this subpart. tions.
[41 FR 33443, Aug. 9, 1976] [52 FR 32660, Aug. 28, 1987]

PART 614—TRANSPORTATION Subpart B [Reserved]


INFRASTRUCTURE MANAGEMENT
Subpart C—Requirements for
Energy Assessments
AUTHORITY: 23 U.S.C. 303; 49 U.S.C. 5303–
5305; and 49 CFR 1.48 and 1.51.
AUTHORITY: Sec. 403(b), Pub. L. 95–620; E.O.
SOURCE: 61 FR 67175, Dec. 19, 1996, unless 12185.
otherwise noted.
§ 622.301 Buildings.
§ 614.101 Cross-reference to manage- (a) FTA assistance for the construc-
ment systems.
tion, reconstruction, or modification of
The regulations in 23 CFR Part 500, buildings for which applications are
subparts A and B shall be followed in submitted to FTA after October 1, 1980,
complying with the requirements of will be approved only after the comple-
this part. Part 500, subparts A and B tion of an energy assessment. An en-
implement 23 U.S.C. 303 for State de- ergy assessment shall consist of an
velopment, establishment, and imple- analysis of the total energy require-
mentation of systems for managing ments of a building, within the scope of
traffic congestion (CMS), public trans- the proposed construction activity and
portation facilities and equipment at a level of detail appropriate to that
(PTMS), intermodal transportation fa- scope, which considers:
cilities and systems (IMS), and traffic (1) Overall design of the facility or
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monitoring for highways and public modification, and alternative designs;

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Pt. 624 49 CFR Ch. VI (10–1–07 Edition)

(2) Materials and techniques used in (1) A designated recipient (designated


construction or rehabilitation; recipient has the same meaning as in 49
(3) Special or innovative conserva- U.S.C. 5307(a)(2)); or
tion features that may be used; (2) A recipient for an urbanized area
(4) Fuel requirements for heating, with a population of less than 200,000
cooling, and operations essential to the (smaller urbanized area). The State in
function of the structure, projected which the smaller urbanized area is lo-
over the life of the facility and includ- cated shall act as the recipient.
ing projected costs of this fuel; and (b) An eligible applicant, as defined
(5) Kind of energy to be used, includ- in paragraph (a) of this section, shall
ing: operate in an area that is either:
(i) Consideration of opportunities for (1) An ozone or carbon monoxide non-
using fuels other than petroleum and attainment area as specified under sec-
natural gas, and tion 107(d) of the Clean Air Act (42
(ii) Consideration of using alter- U.S.C. 7407(d)); or
(2) A maintenance area for ozone or
native, renewable energy sources.
carbon monoxide.
(b) Compliance with the require-
ments of paragraph (a) of this section [72 FR 15052, Mar. 30, 2007]
shall be documented as part of the En-
vironmental Assessment or Environ- § 624.3 Eligible activities.
mental Impact Statement for projects (a) Eligible activities include pur-
which are subject to a requirement for chasing or leasing clean fuel buses and
one. Projects for which there is no en- constructing new or improving existing
vironmental assessment or EIS shall public transportation facilities to ac-
document compliance by submission of commodate clean fuel buses.
appropriate material with the applica- (b) The term ‘‘clean fuel vehicle’’
tion for FTA assistance for actual con- means a vehicle that—
struction. (1) Is powered by—
(c) The cost of undertaking and docu- (i) Compressed natural gas;
menting an energy assessment may be (ii) Liquefied natural gas;
eligible for FTA participation if the re- (iii) Biodiesel fuels;
quirements of Federal Management (iv) Batteries;
Circular 74–4 (A–87) are met. (v) Alcohol-based fuels;
(d) This requirement shall not apply (vi) Hybrid electric;
to projects for which the final project (vii) Fuel cells;
application or environmental assess- (viii) Clean diesel, to the extent al-
ment have been submitted to FTA lowed under this section; or
prior to October 1, 1980. (ix) Other low or zero emissions tech-
nology; and
[45 FR 58038, Aug. 29, 1980] (2) The Administrator of the Environ-
mental Protection Agency has certified
PART 624—CLEAN FUELS GRANT sufficiently reduces harmful emissions.
PROGRAM (c) Eligible projects are the fol-
lowing:
(1) Purchasing or leasing clean fuel
Sec.
624.1 Eligible applicant.
buses, including buses that employ a
624.3 Eligible activities. lightweight composite primary struc-
624.5 Application process. ture, and vans for use in revenue serv-
624.7 Certification. ice. The purchase or lease of non-rev-
624.9 Grant requirements. enue vehicles is not an eligible project.
624.11 Reporting. (2) Constructing or leasing clean fuel
bus facilities or electrical recharging
AUTHORITY: 49 U.S.C. 5308; 49 U.S.C. 5334(a);
facilities and related equipment. Fa-
49 CFR 1.51.
cilities and related equipment for clean
SOURCE: 67 FR 40104, June 11, 2002, unless diesel buses are not eligible.
otherwise noted. (3) At the discretion of the Adminis-
trator, projects relating to clean fuel,
§ 624.1 Eligible applicant. biodiesel, hybrid electric, or zero emis-
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(a) An eligible applicant is: sions technology buses that exhibit

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Federal Transit Admin., DOT § 624.9

equivalent or superior emissions reduc- (4) The applicant’s ability to imple-


tions to existing clean fuel or hybrid ment the project and facilities to
electric technologies. maintain and fuel the proposed vehi-
(4) The Federal share for eligible ac- cles;
tivities undertaken for the purpose of (5) The applicant’s coordination of
complying with or maintaining compli- the proposed project with other public
ance with the Clean Air Act under this transportation entities or other related
program shall be limited to 90 percent projects within the applicant’s Metro-
of the net (incremental) cost of the ac- politan Planning Organization or the
tivity. geographic region within which the
(i) The Administrator may exercise proposed project will operate.
discretion and determine the percent- (6) The proposed project’s ability to
age of the Federal share for eligible ac- support emerging clean fuels tech-
tivities to be less than 90 percent. nologies or advanced technologies for
(ii) An administrative determination transit buses.
per this subsection will be published in [72 FR 15053, Mar. 30, 2007]
accordance with § 624.5(a).
(5) Funding for clean diesel buses § 624.7 Certification.
shall be limited to not more than 25
percent of the amount made available The applicant must use the certifi-
each fiscal year to carry out the pro- cation contained in the Annual Notice
of Assurances and Certifications pub-
gram.
(6) Any amount made available for lished in the FEDERAL REGISTER each
October.
this section shall remain available to
an eligible activity for two years after § 624.9 Grant requirements.
the fiscal year for which the amount is
provided. Any amount that remains A grant under this section shall be
unobligated at the end of the three- subject to the following requirements
year-period shall be added to the of 49 U.S.C. 5307(d):
amount made available to carry out (a) General. All recipients shall main-
the program in the following fiscal tain and report financial and operating
information on an annual basis, as pre-
year.
scribed in 49 CFR part 630, and the
[67 FR 40104, June 11, 2002, as amended at 72 most recent National Transit Database
FR 15053, Mar. 30, 2007] Reporting Manual.
(b) Labor standards. As a condition of
§ 624.5 Application process. financial assistance under 49 U.S.C.
(a) FTA shall publish a Notice of 5308, the interests of employees af-
Funding Availability in the FEDERAL fected by the assistance shall be pro-
REGISTER each fiscal year that funding tected under arrangements that the
is made available for the Clean Fuels Secretary of Labor concludes are fair
program. The notice shall provide the and equitable.
criteria by which the eligible projects (c) Satisfactory continuing control. An
will be evaluated for selection and the FTA grantee shall:
Administrator’s determination of the (1) Maintain control over federally
net Federal share for projects funded funded property;
under this Part. (i) Ensure that it is used in transit
(b) The Administrator shall deter- service; and
mine the criteria for selecting proposed (ii) Dispose of it in accordance with
projects for funding, which may in- Federal requirements.
clude, but are not limited to the fol- (2) Under this paragraph (c), if the
lowing factors: grantee leases federally funded prop-
(1) Whether the proposed project is a erty to another party, the lease must
transportation control measure in an provide the grantee satisfactory con-
approved State Implementation Plan; tinuing control over the use of that
(2) The benefits of the proposed property as determined in two areas:
project in reducing transportation-re- real property (land) and facilities; and
lated pollutants; personal property (equipment and roll-
(3) Consistency with the recipient’s ing stock, both revenue and non-rev-
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fleet management plan; enue).

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§ 624.11 49 CFR Ch. VI (10–1–07 Edition)

(d) Maintenance. The grant applicant § 624.11 Reporting.


shall certify annually that pursuant to (a) Recipients of financial assistance
49 U.S.C. 5307(d)(1)(C), it will maintain under 49 U.S.C. 5308 who purchase or
(federally funded) facilities and equip- lease hybrid electric, battery electric
ment. In addition, the grantee shall and fuel cell vehicles shall report semi-
keep equipment and facilities acquired annually the following information to
with Federal assistance in good oper- the appropriate FTA Regional Office
ating order, which includes mainte- for the first three years of the useful
nance of rolling stock (revenue and life of the vehicle:
non-revenue), machinery and equip- (1) Vehicle miles traveled;
ment, and facilities. (2) Fuel/energy costs;
(e) Rates charged elderly and persons (3) Vehicle fuel/energy consumption
with disabilities during nonpeak hours. In and oil consumption;
accordance with 49 U.S.C. 5307(d)(1)(D), (4) Number of road calls or break-
the grant applicant shall certify that downs resulting from clean fuel and ad-
the rates charged the elderly and per- vanced propulsion technology systems,
sons with disabilities during nonpeak and
hours for fixed-route transportation (5) Maintenance costs associated with
using facilities and equipment financed the clean fuels or advanced propulsion
with Federal assistance from FTA will system.
not exceed one-half of the rates gen- (b) Recipients of financial assistance
erally applicable to other persons at under 49 U.S.C. 5308 who purchase or
peak hours, whether the operation is lease compressed natural gas (CNG),
liquefied natural gas (LNG), and lique-
by the applicant or by another entity
fied petroleum gas (LPG) vehicles may
under lease or otherwise.
report the information described in
(f) Use of competitive procurements. paragraph (a) of this section, but this
Pursuant to 49 U.S.C. 5307(d)(1)(E), the reporting is voluntary.
grant applicant shall certify that it (c) Recipients of financial assistance
will use competitive procurements and under 49 U.S.C. 5308 that purchase or
will not use procurements employing lease clean diesel vehicles are not re-
exclusionary or discriminatory speci- quired to report information beyond
fications. FTA grant reporting requirements for
(g) Compliance with Buy America provi- capital projects.
sions. The grant applicant shall certify
[67 FR 40104, June 11, 2002, as amended at 72
that in carrying out a procurement au- FR 15053, Mar. 30, 2007]
thorized for this program, the appli-
cant will comply with applicable Buy
America laws.
PART 630—UNIFORM SYSTEM OF
(h) Certification that local funds are
ACCOUNTS AND RECORDS AND
available for the project. The grant ap- REPORTING SYSTEM
plicant shall certify that the local
Sec.
funds are or will be available to carry
630.1 Purpose.
out the project. 630.2 Scope.
(i) Compliance with national policy 630.3 Definitions.
concerning elderly persons and individ- 630.4 Requirements.
uals with disabilities. The grant appli- 630.5 Failure to report data.
cant shall certify that it will comply 630.6 Late and incomplete reports.
with the requirements of 49 U.S.C. 630.7 Failure to respond to questions.
630.8 Questionable data items.
5301(d) concerning the rights of elderly 630.9 Notice of FTA action.
persons and persons with disabilities. 630.10 Waiver of reporting requirements.
(j) FTA Master Agreement. The grant 630.11 Data adjustments.
applicant shall comply with applicable 630.12 Display of OMB control numbers.
provisions of the FTA Master Agree- APPENDIX A TO PART 630—OVERVIEW AND EX-
ment which is incorporated by ref- PLANATION OF THE URBAN MASS TRANS-
erence in the grant agreement. PORTATION INDUSTRY UNIFORM SYSTEM OF
ACCOUNTS AND RECORDS AND REPORTING
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[72 FR 15053, Mar. 30, 2007] SYSTEM

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Federal Transit Admin., DOT § 630.4
AUTHORITY: Sec. 111, Pub. L. 93–503, 88 Stat. tem of Accounts and Records and the
1573 (49 U.S.C. 1611); Secs. 303(a) and 304(c), Reporting Manual means the most re-
Public Law 97–424, 96 Stat. 2141 (49 U.S.C. cently issued edition of the reference
1607); and 49 CFR 1.51.
documents.
SOURCE: 58 FR 4888, Jan. 15, 1993, unless Days mean calendar days.
otherwise noted. The Federal Transit Act means the
Federal Transit Act, as amended (49
§ 630.1 Purpose. U.S.C. 1601a et seq.)
The purpose of this part is to pre- Mass Transportation Agency or transit
scribe requirements and procedures agency means an agency authorized to
necessary for compliance with the Uni- transport people by bus, rail, or other
form System of Accounts and Records conveyance, either publicly or pri-
and Reporting System mandated by vately owned, and which provides to
section 15 of the Federal Transit Act, the public general or special service
as amended, 49 U.S.C. 1611, and to set (but not including school, charter, or
forth the procedures for addressing a sightseeing service) on a regular and
reporting agency’s failure to comply continuing, scheduled or unscheduled,
with these requirements. basis. Transit agencies are classified
according to the mode of transit serv-
§ 630.2 Scope. ice operated. A multi-mode transit
This part applies to all applicants agency operates two or more modes,
and beneficiaries of Federal financial which are defined in the current edi-
assistance under section 9 of the Fed- tions of the Urban Mass Transpor-
eral Transit Act, as amended (49 U.S.C. tation Industry Uniform System of Ac-
1607a). counts and Records and the Reporting
Manual.
§ 630.3 Definitions. Reference Document(s) means the cur-
(a) Except as otherwise provided, rent editions of the Urban Mass Trans-
terms defined in the Federal Transit portation Industry Uniform System of
Act, as amended (49 U.S.C. 1601 et seq.), Accounts and Records, and the Report-
are used in this part as so defined. ing Manual. These documents are sub-
(b) Terms defined in the current edi- ject to periodic revision. Beneficiaries
tions of the Urban Mass Transpor- and applicants are responsible for using
tation Industry Uniform System of Ac- the current editions of the reference
counts and Records and the annual Re- documents.
porting Manual, are used in this part Reporting agency means the agency
as so defined. required to submit a report under sec-
(c) For purposes of this part: tion 15.
Administrator means the Federal
Transit Administrator or the Adminis- § 630.4 Requirements.
trator’s designee. (a) Uniform system of accounts and
Applicant means an applicant for as- records. Each applicant for and direct
sistance under section 9 of the Federal beneficiary of Federal financial assist-
Transit Act, as amended. ance under section 9 of the Federal
Assistance means Federal financial Transit Act must comply with the ap-
assistance for the acquisition, con- plicable requirements of the section 15
struction, or operation of public mass Uniform System of Accounts and
transportation services. Records, as set forth in the current edi-
Beneficiary means any organization tion of the ‘‘Urban Mass Transpor-
operating and delivering urban transit tation Industry Uniform System of Ac-
services that directly receives benefits counts and Records’’; the ‘‘Reporting
from assistance under section 9 of the Manual’’; Circulars; and other ref-
Federal Transit Act, as amended. erence documentation.
Chief Executive Officer (CEO) means (b) Reporting system. Each applicant
the principal executive in charge of for, and direct beneficiary of, Federal
and responsible for the reporting agen- financial assistance under section 9 of
cy. the Federal Transit Act must comply
Current edition of the Urban Mass with the applicable requirements of the
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Transportation Industry Uniform Sys- section 15 Reporting System, as set

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§ 630.5 49 CFR Ch. VI (10–1–07 Edition)

forth in the current edition of the port data under § 630.05 provided that
‘‘Urban Mass Transportation Industry the reporting agency has exhausted all
Uniform System of Accounts and possibilities for obtaining this informa-
Records’’; the ‘‘Reporting Manual’’; tion.
Circulars; and other reference docu-
mentation. § 630.7 Failure to respond to questions.
(c) Copies. Copies of these referenced The FTA will review each section 15
documents are available from the Fed- report to verify the reasonableness of
eral Transit Administration, Office of the data submitted. If any of the data
Grants Management, Audit Review and do not appear reasonable, the FTA will
Analysis Division, P.O. Box 61126, notify the reporting agency of this fact
Washington, DC 20039–1126. These ref- and request written justification to
erence documents are subject to peri- document the accuracy of the ques-
odic revision. Revisions of these docu- tioned data. Failure of a reporting
ments will be mailed to all persons re- agency to make a good faith written
quired to comply and a notice of any response to this request will be treated
significant changes in these reference under § 630.5 as failure to report data.
documents will be published in FED-
ERAL REGISTER. § 630.8 Questionable data items.
The FTA may enter a zero or adjust
§ 630.5 Failure to report data. any questionable data item(s) in a re-
Failure to report data in accordance porting agency’s section 15 report used
with this part will result in the report- in computing the section 9 apportion-
ing agency being ineligible to receive ment. These adjustments may be made
any section 9 grants directly or indi- if any data appear inaccurate or have
rectly (e.g., a public agency receiving not been collected and reported in ac-
The FTA funds through another public cordance with the FTA’s definitions
agency rather than directly from the and/or confidence and precision levels,
FTA). This ineligibility applies to all or if there is lack of adequate docu-
reporting agencies without regard to mentation or a reliable recordkeeping
the size of the urbanized area served by system.
the reporting agency.
§ 630.9 Notice of FTA action.
§ 630.6 Late and incomplete reports. Before taking final action under
(a) Late reports. Each reporting agen- § 630.5, § 630.6, § 630.7 or § 630.8, the FTA
cy shall ensure that its report is re- will transmit a written request to the
ceived by the FTA on due dates pre- reporting agencies to provide the nec-
scribed in the annual Reporting Man- essary information within a specified
ual. A reporting agency may request an reasonable period of time. The FTA
extension of 30 days after the due date. will advise the reporting agency of its
The FTA will treat a failure to submit final decision in this regard.
the required report by the due date as
failure to report data under § 630.05. § 630.10 Waiver of reporting require-
(b) Incomplete reports. The FTA will ments.
treat any report or submission which Waivers of one or more sections of
does not contain all the necessary re- the reporting requirements may be
porting forms, data, or certifications granted at the discretion of the Admin-
for services directly operated by the re- istrator on a written showing that the
porting agency in substantial conform- party seeking the waiver cannot fur-
ance with the definitions, procedures, nish the required data without unrea-
and format requirements set out in the sonable expense and inconvenience.
section 15 Uniform System of Accounts Each waiver will be for a specified pe-
and Records and Reporting System as riod of time.
failure to report data under § 630.05.
The FTA will treat the submission of a § 630.11 Data adjustments.
report with incomplete data or missing Errors in the data used in making
forms for services provided under con- the apportionment may be discovered
tract to the reporting agency by pri- after any particular year’s apportion-
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vate or public carriers as failure to re- ment is completed. If so, the FTA shall

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Federal Transit Admin., DOT Pt. 630, App. A

make adjustments to correct these er- chased service during the maximum service
rors in a subsequent year’s apportion- period.
ment to the extent feasible.
B. Purpose of This Appendix
§ 630.12 Display of OMB control num- This appendix presents a general introduc-
bers. tion to the structure and operation of the
All of the information collection re- two Systems. It is not a detailed set of in-
quests in this part have been approved structions for completion of a Section 15 re-
by the Office of Management and Budg- port or establishment of a System of Ac-
counts and Records. Persons in need of more
et under control number 2132–0008.
information should refer to the current edi-
APPENDIX A TO PART 630—OVERVIEW tions of the Urban Mass Transportation In-
AND EXPLANATION OF THE URBAN
dustry Uniform System of Accounts and
Records and the Reporting Manual, available
MASS TRANSPORTATION INDUSTRY
from: Federal Transit Administration, Audit
UNIFORM SYSTEM OF ACCOUNTS AND Review and Analysis Division, Office of Cap-
RECORDS AND REPORTING SYSTEM ital and Formula Assistance, P.O. Box 61126,
A. Introduction Washington, DC 20039–1126.
The FTA periodically updates these ref-
Section 15 of the Federal Transit Act, as erence documents or supplements them to
amended, provides for establishment of two revise or clarify section 15 definitions, re-
information-gathering analytic systems: A
porting forms and instructions. Section 630.4
Uniform System of Accounts and Records,
makes clear that reporting agencies must
and a Reporting System for the collection
and dissemination of public mass transpor- use the most recent edition of reference doc-
tation financial and operating data by uni- uments and reporting forms to comply with
form categories. The purpose of these two the section 15 requirements. The FTA there-
Systems is to provide information on which fore encourages local officials to check with
to base public transportation planning and the FTA before completing a Section 15 re-
public sector investment decisions. The sec- port to avoid unnecessary efforts and delays.
tion 15 system is administered by the Fed-
eral Transit Administration (FTA). C. Special (Reduced) Reporting Requirements
The Uniform System of Accounts and Records Certain information collection and record-
consists of: ing requirements were tailored to accommo-
• Various categories of accounts and date the unique characteristics of certain
records for classifying financial and oper-
transportation modes. Reduced requirements
ating data;
were permitted during limited time periods
• Precise definitions as to what data ele-
ments are to be included in these categories; to ease transition to complete reporting for
and these modes. Reduced reporting require-
• Definitions of practices for systematic ments for commuter rail systems and van-
colloection and recording of such informa- pool services ended in the 1987 report year. In
tion. addition, the reduced reporting requirements
• While a specific accounting system is for private subscription and private noncon-
recommended for this recordkeeping, it is tract conventional bus service is eliminated
possible to make a translation from most ex- for the 1992 report year.
isting accounting systems to comply with
the Section 15 Reporting System, which con- D. A Single Required Level of Section 15
sists of forms and procedures: Reporting and Recordkeeping
• For transmitting data from transit agen- The FTA has developed a single required
cies to the FTA; reporting format for use by all transit agen-
• For editing and storing the data; and
cies. The single required level accommodates
• For the FTA to report information to
variations in size, local laws, and modes of
various groups.
Under the terms of section 15 of the Fed- transport.
eral Transit Act, as amended, all applicants The Uniform Systems also contain a lim-
for, and beneficiaries of, Federal assistance ited amount of additional more detailed fi-
under section 9 of the Act (under the formula nancial and operational data that can be
grant programs) must comply with the Re- submitted at the reporting agency’s option.
porting System and the Uniform System of Because the optional subcategories of data
Accounts and Records in order to be eligible can be aggregated to the required level,
for Federal grants. It should be noted that these subcategories define the more aggre-
separate and complete Section 15 reports gated data. The definitions for data reported
must be submitted by or for each purchased at the required level are consistent with, and
transportation service provider that operates summarized from, those for the more de-
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100 or more revenue vehicles for the pur- tailed optional data.

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Pt. 630, App. A 49 CFR Ch. VI (10–1–07 Edition)
E. The Uniform System of Accounts and Records Operating expenses can be identified either
in function or object class categories, or
The Uniform System of Accounts and
cross-classified, allowing identification using
Records (USOA) consists of a financial ac-
both categories. The Uniform System also
counting and operational recordkeeping sys-
tem designed for mass transportation man- categorizes expenditures by four basic func-
agers and planners. Its uniformity permits tions submitted by all reporting agencies. A
more thorough and accurate comparisons limited number of additional details are op-
and analyses of different transit agencies’ tional. All reporting agencies are required to
operating costs and efficiencies than if each use a single set of object class categories.
had a unique recordkeeping and accounting The Uniform System has a single set of
system. The System establishes various cat- revenue object classes to be used by all re-
egories of accounts and records for porting agencies, and provides a limited
classifying mass transportation operating number of additional details that are op-
and financial data, and includes precise defi- tional.
nitions of transportation terminology to en- The Uniform System provides a classifica-
sure that all users share a common under- tion for sources and uses of capital to be sub-
standing of how to use and interpret the col- mitted by all reporting agencies. These clas-
lected data. sifications replace capital information pre-
viously required on the balance sheet and
(1) Use of the Accounts and Records System capital subsidiary schedule.
Beneficiaries of, and applicants for, Fed- The Uniform System of Accounts and
eral assistance are not required to use the Records also includes collecting and record-
Uniform System of Accounts and Records in ing of certain operating data elements.
keeping their own records. If an applicant or Details and definitions of the expense ob-
beneficiary chooses not to use the System, ject classes, functions, revenue object class-
however, it must nevertheless be able to es, sources and uses of capital, and operating
translate its accounts and records system to data elements are contained in the current
the accounts prescribed in the System. The edition of the ‘‘Reporting Manual,’’ which is
accounting system that the reporting agency updated annually, and the USOA reference
uses must permit preparation of financial documents.
and operating data that conform to the Uni-
F. The Reporting System
form System directly from its records at the
end of the fiscal year, and must be consistent (1) The Section 15 Reporting System con-
with the following: sists of forms and procedures for transmit-
(i) The data must have been developed ting data from transit agencies to the FTA.
using the accrual method of accounting. All beneficiaries of Federal financial assist-
Those transit systems that use cash-basis ac- ance must submit the required forms and in-
counting, in whole or in part, must make formation in order to allow the FTA to: (1)
work sheet adjustments in their account Store and generate information on the Na-
books to record the data on the accrual tion’s mass transportation systems; and (2)
basis. calculate apportionment allocations for the
(ii) Reporting agencies must follow or be section 9 formula grant program (for urban-
able to directly translate their system to the ized areas of 200,000 or more inhabitants).
accounting treatment specified in the publi- Agencies submitting Section 15 reports may
cation ‘‘Uniform System of Accounts and only submit data for transit services which
Records.’’ they directly operate and purchase under
(iii) The reporting agency’s accounting contract from public agencies and/or private
categories (chart of accounts) must be cor- carriers.
rectly related, using a clear audit trail, to Separate and complete Section 15 reports
the accounting categories prescribed in the must be submitted by or for each purchased
Uniform System of Accounts and Records. transportation service provider that operates
100 or more revenue vehicles for the pur-
(2) General Structure of Uniform System of chased service during the maximum service
Accounts and Records period. The reporting requirements include
In the Section 15 Uniform System of Ac- the following major segments, which are
counts and Records, operating expenses in- based on information assembled through the
curred by the transit system are classified Uniform System of Accounts and Records:
by transit mode. The FTA developed expense 1. Capital report.
classifications in two dimensions for uni- 2. Revenue report.
formity and to enhance the usefulness of the 3. Expense report.
data collected under section 15. The classi- 4. Nonfinancial operating data reports.
fications are typical of those of most transit 5. Miscellaneous auxiliary questionnaires
accounting systems. The two dimensions are: and subsidiary schedules.
(i) The type of expenditure (expense object 6. Data declarations.
(2) The Section 15 Reporting System in-
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class); and
(ii) The function or activity performed. cludes two data declarations.

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Federal Transit Admin., DOT Pt. 633
(a) The Chief Executive Officer (CEO) Cer- Condition II. The reporting agency (1) uses
tification. an internal accounting system other than
The CEO of each reporting agency is re- the accounting system prescribed by the
quired to submit a certification with each USOA, (2) uses the accrual basis of account-
annual Section 15 report. The certification ing, (3) directly translates the system and
must attest: accounting categories, using a clear audit
• To the accuracy of all data contained in trail, to the accounting treatment and cat-
the Section 15 report; egories specified by the USOA, and (4) has
• That all data submitted in the Section 15 previously submitted a Section 15 report
report are in accord with Section 15 defini- that was compiled using the same internal
tions; accounting system and translation to the
• If applicable, that the reporting agency’s USOA and was reviewed by an independent
accounting system used to derive all data auditor.
submitted in the Section 15 report is the sec- For agencies that have received a waiver,
tion 15 Uniform System of Accounts and the CEO annual Certification must verify
Records and that a Section 15 report using that the financial data meet one of the above
this system was certified by an independent two conditions.
auditor in a previous report year; Additionally, all reporting agencies that
• If applicable, the fact that the reporting are in or serve urbanized areas with popu-
agency’s internal accounting system is other lations of 200,000 or more and whose report
than the Uniform System of Accounts and covers 100 or more vehicles in annual max-
Records, and that its: (i) accounting system imum service across all modes and types of
uses the accrual basis of accounting, (ii) ac- service must have an independent auditor re-
counting system is directly translated, using view all section 15 data used in the section 9
a clear audit trail, to the accounting treat- formula allocation. The statement should
ment and categories specified by the section discuss, by mode and type of service: direc-
15 Uniform System of Accounts and Records, tional route miles, vehicle revenue miles,
and (iii) accounting system and direct trans- passenger miles, and operating cost, and in-
lation to the Uniform System of Accounts clude both directly operated and purchased
and Records are the same as those certified service. The independent, certified public ac-
by an independent auditor in a previous re-
countant shall perform the verification in
porting year; and
accordance with the ‘‘Statements on Stand-
• That a 100% count of passenger mile data
ards for Attestation Engagements’’ issued by
was conducted or that the sampling method
the American Institute of Certified Public
used to collect passenger mile data for each
Accountants. The specific procedures to be
mode/type of service meets the FTA require-
reviewed are described in the most recent
ments.
Section 15 Reporting Manual.
(b) Auditor Statement on Section 15 Finan-
cial Data Reporting Forms and Section 9
Data. PART 633—PROJECT
Reporting agencies must submit with their MANAGEMENT OVERSIGHT
Section 15 report a statement signed by an
independent public accountant or other re-
sponsible independent entity such as a state Subpart A—General Provisions
audit agency. This statement must express Sec.
an opinion on whether the financial data re- 633.1 Purpose.
porting forms in the Section 15 report 633.3 Scope.
present fairly, in all material respects, the 633.5 Definitions.
information required to be set forth therein
in accordance with the Uniform System of Subpart B—Project Management Oversight
Accounts and Records. The statement shall
Services
also indicate whether any of the reporting
forms or data elements do not conform to 633.11 Covered projects.
the section 15 requirements, and describe the 633.13 Initiation of PMO services.
discrepancies. The statement must consider 633.15 Access to information.
both required and optional data entries. 633.17 PMO contractor eligibility.
Each agency is required to file an Auditor 633.19 Financing the PMO program.
Statement unless it received a written waiv-
er from the FTA. The criteria in either Con- Subpart C—Project Management Plans
dition I or Condition II for granting a finan-
cial data waiver are: 633.21 Basic requirement.
Condition I. The reporting agency (1) has 633.23 FTA review of PMP.
adopted the Industry Uniform System of Ac- 633.25 Contents of a project management
counts and Records (USOA) and (2) has pre- plan.
viously submitted a Section 15 report that 633.27 Implementation of a project manage-
was compiled using the USOA and was re- ment plan.
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viewed by an independent auditor; or 633.29 PMP waivers.

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§ 633.1 49 CFR Ch. VI (10–1–07 Edition)
AUTHORITY: 49 U.S.C. 1601 et. seq., 1619. ment’s participation in a project; sets
SOURCE: 54 FR 36711, Sept. 1, 1989, unless forth the scope of a project; and sets
otherwise noted. forth the mutual understanding, terms,
and conditions relating to the con-
Subpart A—General Provisions struction and management of a project.
Major capital project means a project
§ 633.1 Purpose. that:
This part implements section 324 of (1) Involves the construction of a new
the Surface Transportation and Uni- fixed guideway or extension of an exist-
form Relocation Assistance Act of 1987 ing fixed guideway;
(Pub. L. 100–17), which added section 23 (2) Involves the rehabilitation or
to the FT Act. The part provides for a modernization of an existing fixed
two-part program for major capital guideway with a total project cost in
projects receiving assistance from the excess of $100 million; or
agency. First, subpart B discusses
(3) The Administrator determines is a
project management oversight, de-
signed primarily to aid FTA in its role major capital project because the
of ensuring successful implementation project management oversight pro-
of federally-funded projects. Second, gram will benefit specifically the agen-
subpart C discusses the project man- cy or the recipient. Typically, this
agement plan (PMP) required of all means a project that:
major capital projects. The PMP is de- (i) Generally is expected to have a
signed to enhance the recipient’s plan- total project cost in excess of $100 mil-
ning and implementation efforts and to lion or more to construct;
assist FTA’s grant application analysis (ii) Is not exclusively for the routine
efforts. acquisition, maintenance, or rehabili-
tation of vehicles or other rolling
§ 633.3 Scope.
stock;
This rule applies to a recipient of (iii) Involves new technology;
Federal financial assistance under- (iv) Is of a unique nature for the re-
taking a major capital project using
cipient; or
funds made available under:
(a) Sections 3, 9, or 18 of the Federal (v) Involves a recipient whose past
Mass Transit Act of 1964, as amended; experience indicates to the agency the
(b) 23 U.S.C. 103(e)(4); or appropriateness of the extension of this
(c) Section 14(b) of the National Cap- program.
ital Transportation Amendments of Project management oversight means
1979 (93 Stat. 1320, Pub. L. 96–184). the monitoring of a major capital
project’s progress to determine wheth-
§ 633.5 Definitions. er a project is on time, within budget,
As used in this part: in conformance with design criteria,
Administrator means the Adminis- constructed to approved plans and
trator of the Federal Transit Adminis- specifications and is efficiently and ef-
tration or the Administrator’s des- fectively implemented.
ignee. Project management plan means a
Days means calendar days. written document prepared by a recipi-
Fixed guideway means any public ent that explicitly defines all tasks
transportation facility which utilizes
necessary to implement a major cap-
and occupies a separate right-of-way or
ital project.
rails. This includes, but is not limited
to, rapid rail, light rail, commuter rail, Recipient means a direct recipient of
automated guideway transit, people Federal financial assistance from FTA.
movers, and exclusive facilities for FT Act means the Federal Mass Tran-
buses and other high occupancy vehi- sit Act of 1964, as amended.
cles. FTA means the Federal Transit Ad-
Full funding agreement means a writ- ministration.
ten agreement between FTA and a re-
cipient that establishes a financial
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ceiling with respect to the Govern-

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Federal Transit Admin., DOT § 633.21

Subpart B—Project Management § 633.19 Financing the PMO program.


Oversight Services (a) FTA is authorized to expend up to
1⁄2 of 1 percent of the funds made avail-
§ 633.11 Covered projects. able each fiscal year under sections 3,
The Administrator may contract for 9, or 18 of the FT Act, 23 U.S.C.
project management oversight services 103(e)(4), or section 14(b) of the Na-
when the following two conditions tional Capital Transportation Amend-
apply: ments of 1979 (93 Stat. 1320) to contract
(a) The recipient is using funds made with any person or entity to provide a
available under section 3, 9, or 18 of the project management oversight service
Federal Mass Transit Act of 1964, as in connection with a major capital
amended; 23 U.S.C. 103(e)(4); or section project as defined in this part.
14(b) of the National Capital Transpor- (b) A contract entered into between
tation Amendments of 1979; and FTA and a person or entity for project
(b) The project is a ‘‘major capital management oversight services under
project’’. this part will provide for the payment
by FTA of 100 percent of the cost of
§ 633.13 Initiation of PMO services. carrying out the contract.
PMO services will be initiated as
soon as it is practicable, once the agen- Subpart C—Project Management
cy determines this part applies. In Plans
most cases, this means that PMO will
begin during the preliminary engineer- § 633.21 Basic requirement.
ing phase of the project. However, con-
(a) If a project meets the definition
sistent with other provisions in this
of major capital project, the recipient
part, the Administrator may determine
shall submit a project management
that a project is a ‘‘major capital
plan prepared in accordance with
project’’ at any point during its imple-
§ 633.25 of this part, as a condition of
mentation. Should this occur, PMO
Federal financial assistance. As a gen-
will begin as soon as practicable after
eral rule, the PMP must be submitted
this agency determination.
during the grant review process and is
§ 633.15 Access to information. part of FTA’s grant application review.
This section applies if:
A recipient of FTA funds for a major (1) The project fails under one of the
capital project shall provide the Ad-
automatic major capital investment
ministrator and the PMO contractor
project categories (§ 633.5(1) or (2) of
chosen under this part access to its
this part); or
records and construction sites, as rea-
(2) FTA makes a determination that
sonably may be required.
a project is a major capital project,
§ 633.17 PMO contractor eligibility. consistent with the definition of major
capital project in § 633.5. This deter-
(a) Any person or entity may provide mination normally will be made during
project management oversight services
the grant review process. However,
in connection with a major capital
FTA may make such determination
project, with the following exceptions:
after grant approval.
(1) An entity may not provide PMO
(b)(1) FTA will notify the recipient
services for its own project; and
when it must submit the PMP. Nor-
(2) An entity may not provide PMO
mally, FTA will notify the recipient
services for a project if there exists a
sometime during the grant review
conflict of interest.
process. If FTA determines the project
(b) In choosing private sector persons
is major under its discretionary au-
or entities to provide project manage-
thority after the grant has been ap-
ment oversight services, FTA uses the
proved, FTA will inform the recipient
procurement requirements in the gov-
of its determination as soon as pos-
ernment-wide procurement regula-
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sible.
tions, found at 48 CFR CH I.

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§ 633.23 49 CFR Ch. VI (10–1–07 Edition)

(2) Once FTA has notified the recipi- (j) Criteria and procedures to be used
ent that it must submit a plan, the re- for testing the operational system or
cipient will have a minimum of 90 days its major components;
to submit the plan.
§ 633.27 Implementation of a project
§ 633.23 FTA review of PMP. management plan.
Within 60 days of receipt of a project (a) Upon approval of a project man-
management plan, the Administrator agement plan by the Administrator the
will notify the recipient that: recipient shall begin implementing the
plan.
(a) The plan is approved; (b) If a recipient must modify an ap-
(b) The plan is disapproved, including proved project management plan, the
the reasons for the disapproval; recipient shall submit the proposed
(c) The plan will require modifica- changes to the Administrator along
tion, as specified, before approval; or with an explanation of the need for the
(d) The Administrator has not yet changes.
completed review of the plan, and state (c) A recipient shall submit periodic
when it will be reviewed. updates of the project management
plan to the Administrator. Such up-
§ 633.25 Contents of a project manage- dates shall include, but not be limited
ment plan. to:
At a minimum, a recipient’s project (1) Project budget;
management plan shall include— (2) Project schedule;
(a) A description of adequate recipi- (3) Financing, both capital and oper-
ent staff organization, complete with ating;
well-defined reporting relationships, (4) Ridership estimates, including op-
statements of functional responsibil- erating plan; and
ities, job descriptions, and job quali- (5) Where applicable, the status of
fications; local efforts to enhance ridership when
estimates are contingent, in part, upon
(b) A budget covering the project
the success of such efforts.
management organization, appropriate
(d) A recipient shall submit current
consultants, property acquisition, util-
data on a major capital project’s budg-
ity relocation, systems demonstration
et and schedule to the Administrator
staff, audits, and such miscellaneous
on a monthly basis.
costs as the recipient may be prepared
to justify; § 633.29 PMP waivers.
(c) A construction schedule; A waiver will be considered upon ini-
(d) A document control procedure tiation by the grantee or by the agency
and recordkeeping system; itself. The Administrator may, on a
(e) A change order procedure which case-by-case basis, waive:
includes a documented, systematic ap- (a) Any of the PMP elements in
proach to the handling of construction § 633.25 of this part if the Administrator
change orders; determines the element is not nec-
(f) A description of organizational essary for a particular plan; or
structures, management skills, and (b) The requirement of having a new
staffing levels required throughout the project management plan submitted
construction phase; for a major capital project if a recipi-
(g) Quality control and quality assur- ent seeks to manage the major capital
ance programs which define functions, project under a previously-approved
procedures, and responsibilities for project management plan.
construction and for system installa-
tion and integration of system compo- PART 639—CAPITAL LEASES
nents;
(h) Material testing policies and pro- Subpart A—General
cedures;
Sec.
(i) Plan for internal reporting re- 639.1 General overview of this part.
quirements including cost and schedule
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639.3 Purpose of this part.


control procedures; and 639.5 Scope of this part.

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Federal Transit Admin., DOT § 639.7
639.7 Definitions. equipment on the condition that the
leasing arrangements are more cost ef-
Subpart B—Requirements fective than purchase or construction.
639.11 Lease qualification requirements. [63 FR 68367, Dec. 10, 1998]
639.13 Eligible types of leases.
639.15 Eligible forms of grant.
639.17 Eligible lease costs.
§ 639.5 Scope of this part.
639.19 Other Federal requirements. This part applies to all requests for
capital assistance under Chapter 53 of
Subpart C—Cost-Effectiveness Title 49 of the United States Code
639.21 Determination of cost-effectiveness. where the proposed method of obtain-
639.23 Calculation of purchase or construc- ing a capital asset is by lease rather
tion cost. than purchase or construction.
639.25 Calculation of lease cost.
639.27 Minimum criteria. [63 FR 68367, Dec. 10, 1998]

Subpart D—Lease Management § 639.7 Definitions.


639.31 Early lease termination or modifica- In this part:
tion. Applicant is included in the term
639.33 Management of leased assets. ‘‘recipient’’.
AUTHORITY: 49 U.S.C. 5302; 49 CFR 1.51. Capital asset means facilities or
SOURCE: 56 FR 51794, Oct. 15, 1991, unless equipment with a useful life of at least
otherwise noted. one year, which are eligible for capital
assistance.
Subpart A—General Capital assistance means Federal fi-
nancial assistance for capital projects
§ 639.1 General overview of this part. under section 9 of the FT Act.
This part contains the requirements Capital lease means any transaction
to qualify for capital assistance when whereby the recipient acquires the
leasing facilities or equipment under right to use a capital asset without ob-
the Federal transit laws. This part is taining full ownership regardless of the
set out in four subparts, with subpart A tax status of the transaction.
containing general information on Equipment means non-expendable per-
scope and definitions. Subpart B con- sonal property.
tains the principal requirements of this Facilities means real property, includ-
part, including eligibility require- ing land, improvements and fixtures.
ments, the self-certification system Interest rate means the most advan-
used, and identification of the various tageous interest rate actually avail-
forms of leases and grants that are eli- able to the recipient in the market.
gible under the program. Subpart B Present value means the value at the
also contains a section on other Fed- time of calculation of a future pay-
eral requirements that may apply. Sub- ment, or series of future payments dis-
part C includes the actual calculations counted by the time value of money as
that each recipient should undertake represented by an interest rate or simi-
before certifying that a lease is cost-ef- lar cost of funds.
fective. Finally, subpart D contains re- Recipient means an entity that re-
quirements on early lease termination ceives Federal financial assistance
and project management in general. from FTA, including an entity that re-
[63 FR 68366, Dec. 10, 1998] ceives Federal financial assistance
from FTA through a State or other
§ 639.3 Purpose of this part. public body. In this part, a recipient in-
This rule implements section 3003 of cludes an applicant for Federal finan-
the Transportation Equity Act for the cial assistance.
21st Century (Pub. L. 105–178). Section FT Act means the Federal Mass Tran-
3003 amended section 5302 of Chapter 53 sit Act of 1964, as amended, 49 U.S.C.
of Title 49 of the United States Code to 1601 et seq.
allow a recipient to use capital funds FTA means the Federal Transit Ad-
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to finance the leasing of facilities and ministration.

53

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§ 639.11 49 CFR Ch. VI (10–1–07 Edition)

Subpart B—Requirements November 14, 1991 may be eligible for


capital assistance for costs incurred
§ 639.11 Lease qualification require- after approval of such a lease by FTA
ments. under this part, if
(a) A lease may qualify for capital as- (1) The lease is otherwise eligible
sistance if it meets the following cri- under this part;
teria: (2) The recipient can demonstrate
(1) The capital asset to be acquired that the lease, when entered into, was
by lease is otherwise eligible for cap- more cost effective than purchase or
ital assistance; construction; and
(2) There is or will be no existing (3) The procurement of the asset by
Federal interest in the capital asset as lease was in accordance with Federal
of the date the lease will take effect requirements that applied at the time
unless as determined pursuant to the procurement tool place.
§ 639.13(b); and
(3) Lease of the capital asset is more [56 FR 51794, Oct. 15, 1991, as amended at 63
cost-effective than purchase or con- FR 68367, Dec. 10, 1998]
struction of the asset, as determined
under subpart C of this part. § 639.15 Eligible forms of grant.
(b) Once a lease has been qualified for A recipient may choose to receive
capital assistance, it need not be re- capital assistance for a capital lease
qualified absent an affirmative act or approved under this part—
omission by the recipient that vitiates (a) In a single grant under which
the cost-effectiveness determination. lease payments may be drawn down pe-
§ 639.13 Eligible types of leases. riodically for the life of the lease; or
(b) In increments that are obligated
(a) General. Any leasing arrangement, by FTA periodically (usually in annual
the terms of which provide for the re- section 9 grants). In this case, a recipi-
cipient’s use of a capital asset, poten- ent—
tially is eligible as a capital project
(1) Must certify to FTA that it has
under Chapter 53 of Title 49 of the
the financial capacity to meet its fu-
United States Code, regardless of the
ture obligations under the lease in the
classification of the leasing arrange-
event Federal funds are not available
ment for tax purposes.
for capital assistance in subsequent
(b) Special circumstances. A recipient
years; and
may request FTA to determine the eli-
gibility of a certain financial arrange- (2) May incur costs under its lease be-
ment if the recipient believes it might fore FTA’s obligation of future incre-
not meet the requirements of this part. ments of funding for such a lease.
(c) Lump sum lease. A recipient that These costs are reimbursable in future
wishes to enter into a lease which re- grants, so long as the terms of the
quires the draw down of a single lump lease do not substantially change.
sum payment at the inception of the
lease (or payments in advance of the § 639.17 Eligible lease costs.
incurrence of costs) rather than peri- (a) All costs directly attributable to
odic payments during the life of the making a capital asset available to the
lease must notify FTA prior to execu- lessee are eligible for capital assist-
tion of the lease concerning how it will ance, including, but not limited to—
ensure satisfactory continuing control (1) Finance charges, including inter-
of the asset for the duration of the est;
lease. FTA has the right to disapprove (2) Ancillary costs such as delivery
any arrangements where it has not and installation charges; and
been demonstrated that the recipient (3) Maintenance costs.
will have control over the asset. FTA (b) Any asset leased under this part
may require the recipient to submit its must be eligible for capital assistance
cost-effectiveness comparison for re- under a traditional purchase or con-
view. struction grant.
(d) Pre-existing lease. A lease entered
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into before grant approval, or before [61 FR 25090, May 17, 1996]

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Federal Transit Admin., DOT § 639.25

§ 639.19 Other Federal requirements. plicant in its proposal to obtain the


(a) A recipient of capital assistance capital asset.
for a capital lease is subject to the (b) The estimated cost to purchase or
same statutory and administrative re- construct must be—
quirements as a recipient who pur- (1) Reasonable;
chases or constructs a capital asset. (2) Based on realistic current market
(b) A lessor of a capital lease is sub- conditions; and
ject to the same statutory and admin- (3) Based on the expected useful life
istrative requirements as a direct sell- of the asset in mass transportation
er of the same capital asset would be service, as indicated in paragraph (c) of
when the lessor— this section.
(1) Purchases or constructs a capital (c) For purposes of this part, the ex-
asset in contemplation of leasing it to pected useful life of a revenue vehicle
a recipient; or is the useful life which is established
(2) Modifies an existing capital asset by FTA for recipients of Federal assist-
in contemplation of leasing it to a re- ance under FTA’s Circulars for section
cipient. 9 recipients. For assets other than rev-
enue vehicles, the applicant is respon-
Subpart C—Cost-Effectiveness sible for establishing a reasonable ex-
pected useful life. If the recipient does
§ 639.21 Determination of cost-effec-
tiveness. not intend to use the capital asset it is
proposing to obtain by lease in mass
(a) To qualify a lease for capital as- transportation service for its entire ex-
sistance, a recipient must— pected useful life, when calculating the
(1) Make a written comparison of the
purchase cost, the recipient must cal-
cost of leasing the asset with the cost
culate the fair market value of the
of purchasing or constructing it; and
asset as of the date the lease will ter-
(2) Certify to FTA before entering
into the lease or before receiving a cap- minate pursuant to Guidelines found in
ital grant for the asset, whichever is section 108(b) of part II Standard
later, that obtaining the asset by lease Terms and Conditions for valuation of
is more cost-effective than purchase or property withdrawn from transit use
construction of such asset. before the end of its useful life and sub-
(b) For purposes of this part, obtain- tract that amount from the purchase
ing the asset by lease is more cost-ef- price. The resulting amount is the pur-
fective than purchase or construction chase price for purposes of this rule.
when the lease cost calculated under
§ 639.25 of this part is less than the pur- § 639.25 Calculation of lease cost.
chase cost calculated under § 639.23 of (a) For purposes of this part, the
this part. lease cost of a capital asset is—
(c) If a recipient is unable to perform (1) The cost to lease the asset for the
the prescribed cost-effectiveness com- same use and same time period speci-
parison as described in this subpart, it fied in the recipient’s proposal to ob-
may ask FTA to approve an alternate tain the asset by purchase or construc-
form of cost-effectiveness evaluation. tion; plus
§ 639.23 Calculation of purchase or (2) Ancillary costs such as delivery
construction cost. and installation; plus
(a) For purposes of this subpart, the (3) The net present value of the esti-
purchase or construction cost of a cap- mated future cost to provide any other
ital asset is— service or benefit requested by the ap-
(1) The estimated cost to purchase or plicant in its proposal to obtain the
construct the asset; plus capital asset.
(2) Ancillary costs such as delivery (b) The estimated lease costs must be
and installation; plus reasonable, based on realistic market
(3) The net present value of the esti- conditions applicable to the recipient
mated future cost to provide any other and must be expressed in present value
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service or benefit requested by the ap- terms.

55

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§ 639.27 49 CFR Ch. VI (10–1–07 Edition)

§ 639.27 Minimum criteria. § 639.33 Management of leased assets.


In making the comparison between Each recipient must maintain an in-
leasing and purchasing or constructing ventory of capital assets acquired by
an asset, recipients should ascribe a re- standard FTA project management
alistic dollar value to any non-finan- guidelines.
cial factors that are considered by
using performance-based specifications PART 640—CREDIT ASSISTANCE
in the comparison. In addition to fac- FOR SURFACE TRANSPORTATION
tors unique to each recipient, the fol- PROJECTS
lowing factors are to be used where
possible and appropriate:
(a) Operation costs; AUTHORITY: Secs. 1501 et seq., Pub. L. 105–
(b) Reliability of service; 178, 112 Stat. 107, 241, as amended; 23 U.S.C.
(c) Maintenance costs; 181–189 and 315; 49 CFR 1.51.
(d) Difference in warranties;
§ 640.1 Cross-reference to credit assist-
(e) Passenger comfort; ance.
(f) Insurance costs;
(g) Costs/savings related to timing of The regulations in 49 CFR part 80
acquisition of asset. shall be followed in complying with the
(h) Value of asset at expiration of the requirements of this part. Title 49,
lease. CFR, part 80 implements the Transpor-
tation Infrastructure Finance and In-
Subpart D—Lease Management novation Act of 1998, secs. 1501 et seq.,
Pub. L. 105–178, 112 Stat. 107, 241.
§ 639.31 Early lease termination or [64 FR 29753, June 2, 1999]
modification.
(a) Except as provided in paragraph PART 655—PREVENTION OF ALCO-
(c) of this section, if a capital lease HOL MISUSE AND PROHIBITED
under this part is terminated or its
terms substantially modified before
DRUG USE IN TRANSIT OPER-
the end of the period used in the cost- ATIONS
effectiveness evaluation, or if the re-
cipient by an affirmative act or omis- Subpart A—General
sion vitiates the cost-effectiveness de- Sec.
termination of the lease, future lease 655.1 Purpose.
costs will no longer qualify as eligible 655.2 Overview.
capital expenses. In addition, the re- 655.3 Applicability.
cipient must reimburse the project— 655.4 Definitions.
655.5 Stand-down waivers for drug testing.
(1) Any Federal funds paid for the 655.6 Preemption of state and local laws.
portion of the lease term eliminated by 655.7 Starting date for testing programs.
early termination; and
(2) The Federal share of the excess, if Subpart B—Program Requirements
any, of the present value of lease costs,
which exceeds the purchase costs as 655.11 Requirement to establish an anti-
drug use and alcohol misuse program.
calculated under subpart C of this part 655.12 Required elements of an anti-drug use
for the period of the lease up to the and alcohol misuse program.
point of termination. 655.13 [Reserved]
(b) Penalties resulting from early 655.14 Education and training programs.
termination of a capital lease under 655.15 Policy statement contents.
this part are not eligible for Federal fi- 655.16 Requirement to disseminate policy.
nancial assistance. 655.17 Notice requirement.
655.18–655.20 [Reserved]
(c) Paragraph (a) of this section does
not apply if a lessor defaults on or oth- Subpart C—Prohibited Drug Use
erwise does not meet its obligations
under the capital lease and the recipi- 655.21 Drug testing.
ent takes appropriate action to ensure 655.22–655.30 [Reserved]
that the procurement continues to be
Subpart D—Prohibited Alcohol Use
cost-effective. FTA shall be notified of
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any such event. 655.31 Alcohol testing.

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Federal Transit Admin., DOT § 655.3
655.32 On duty use. Subpart A—General
655.33 Pre-duty use.
655.34 Use following an accident. § 655.1 Purpose.
655.35 Other alcohol-related conduct.
655.36–655.40 [Reserved] The purpose of this part is to estab-
lish programs to be implemented by
Subpart E—Types of Testing employers that receive financial assist-
ance from the Federal Transit Admin-
655.41 Pre-employment drug testing. istration (FTA) and by contractors of
655.42 Pre-employment alcohol testing. those employers, that are designed to
655.43 Reasonable suspicion testing. help prevent accidents, injuries, and fa-
655.44 Post-accident testing.
talities resulting from the misuse of al-
655.45 Random testing.
cohol and use of prohibited drugs by
655.46 Return to duty following refusal to
employees who perform safety-sen-
submit to a test, verified positive drug
test result and/or breath alcohol test re- sitive functions.
sult of 0.04 or greater.
655.47 Follow-up testing after returning to
§ 655.2 Overview.
duty. (a) This part includes nine subparts.
655.48 Retesting of covered employees with Subpart A of this part covers the gen-
an alcohol concentration of 0.02 or great- eral requirements of FTA’s drug and
er but less than 0.04. alcohol testing programs. Subpart B of
655.49 Refusal to submit to a drug or alcohol this part specifies the basic require-
test. ments of each employer’s alcohol mis-
655.50 [Reserved]
use and prohibited drug use program,
including the elements required to be
Subpart F—Drug and Alcohol Testing
Procedures in each employer’s testing program.
Subpart C of this part describes prohib-
655.51 Compliance with testing procedures ited drug use. Subpart D of this part
requirements. describes prohibited alcohol use. Sub-
655.52 Substance abuse professional (SAP). part E of this part describes the types
655.53 Supervisor acting as collection site of alcohol and drug tests to be con-
personnel. ducted. Subpart F of this part address-
655.54–655.60 [Reserved] es the testing procedural requirements
mandated by the Omnibus Transpor-
Subpart G—Consequences tation Employee Testing Act of 1991,
655.61 Action when an employee has a and as required in 49 CFR Part 40. Sub-
verified positive drug test result or has a part G of this part lists the con-
confirmed alcohol test result of 0.04 or sequences for covered employees who
greater, or refuses to submit to a test. engage in alcohol misuse or prohibited
655.62 Referral, evaluation, and treatment. drug use. Subpart H of this part con-
655.63–655.70 [Reserved] tains administrative matters, such as
reports and recordkeeping require-
Subpart H—Administrative Requirements ments. Subpart I of this part specifies
how a recipient certifies compliance
655.71 Retention of records.
655.72 Reporting of results in a management
with the rule.
information system. (b) This part must be read in con-
655.73 Access to facilities and records. junction with 49 CFR Part 40, Proce-
655.74–655.80 [Reserved] dures for Transportation Workplace
Drug and Alcohol Testing Programs.
Subpart I—Certifying Compliance
§ 655.3 Applicability.
655.81 Grantee oversight responsibility.
655.82 Compliance as a condition of finan- (a) Except as specifically excluded in
cial assistance. paragraphs (b), and (c) of this section,
655.83 Requirement to certify compliance. this part applies to:
(1) Each recipient and subrecipient
AUTHORITY: 49 U.S.C. 5331; 49 CFR 1.51.
receiving Federal assistance under:
SOURCE: 66 FR 42002, Aug. 9, 2001, unless (i) 49 U.S.C. 5307, 5309, or 5311; or
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otherwise noted. (ii) 23 U.S.C. 103(e)(4); and

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§ 655.4 49 CFR Ch. VI (10–1–07 Edition)

(2) Any contractor of a recipient or Anti-drug program means a program


subrecipient of Federal assistance to detect and deter the use of prohib-
under: ited drugs as required by this part.
(i) 49 U.S.C. 5307, 5309, or 5311; or Certification means a recipient’s writ-
(ii) 23 U.S.C. 103(e)(4). ten statement, authorized by the orga-
(b) A recipient operating a railroad nization’s governing board or other au-
regulated by the Federal Railroad Ad- thorizing official that the recipient has
ministration (FRA) shall follow 49 CFR complied with the provisions of this
Part 219 and § 655.83 for its railroad op- part. (See § 655.82 and § 655.83 for certifi-
erations, and shall follow this part for cation requirements.)
its non-railroad operations, if any. Contractor means a person or organi-
(c) A recipient operating a ferryboat zation that provides a safety-sensitive
service for a recipient, subrecipient,
regulated by the United States Coast
employer, or operator consistent with
Guard (USCG) that satisfactorily com-
a specific understanding or arrange-
plies with the testing requirements of
ment. The understanding can be a writ-
46 CFR Parts 4 and 16, and 33 CFR Part
ten contract or an informal arrange-
95 shall be in concurrent compliance
ment that reflects an ongoing relation-
with the testing requirements of this
ship between the parties.
part. This exception shall not apply to
Covered employee means a person, in-
the provisions of section 655.45, or sub-
cluding an applicant or transferee, who
parts G, or H of this part.
performs or will perform a safety-sen-
[66 FR 42002, Aug. 9, 2001, as amended at 71 sitive function for an entity subject to
FR 69198, Nov. 30, 2006] this part. A volunteer is a covered em-
ployee if:
§ 655.4 Definitions. (1) The volunteer is required to hold
For this part, the terms listed in this a commercial driver’s license to oper-
section have the following definitions. ate the vehicle; or
The definitions of additional terms (2) The volunteer performs a safety-
used in this part but not listed in this sensitive function for an entity subject
section can be found in 49 CFR Part 40. to this part and receives remuneration
Accident means an occurrence associ- in excess of his or her actual expenses
ated with the operation of a vehicle, if incurred while engaged in the volun-
as a result: teer activity.
Disabling damage means damage that
(1) An individual dies; or
precludes departure of a motor vehicle
(2) An individual suffers bodily injury from the scene of the accident in its
and immediately receives medical usual manner in daylight after simple
treatment away from the scene of the repairs.
accident; or (1) Inclusion. Damage to a motor ve-
(3) With respect to an occurrence in hicle, where the vehicle could have
which the mass transit vehicle in- been driven, but would have been fur-
volved is a bus, electric bus, van, or ther damaged if so driven.
automobile, one or more vehicles (in- (2) Exclusions. (i) Damage that can be
cluding non-FTA funded vehicles) in- remedied temporarily at the scene of
curs disabling damage as the result of the accident without special tools or
the occurrence and such vehicle or ve- parts.
hicles are transported away from the (ii) Tire disablement without other
scene by a tow truck or other vehicle; damage even if no spare tire is avail-
or able.
(4) With respect to an occurrence in (iii) Headlamp or tail light damage.
which the mass transit vehicle in- (iv) Damage to turn signals, horn, or
volved is a rail car, trolley car, trolley windshield wipers, which makes the ve-
bus, or vessel, the mass transit vehicle hicle inoperable.
is removed from operation. DOT or The Department means the
Administrator means the Adminis- United States Department of Transpor-
trator of the Federal Transit Adminis- tation.
tration or the Administrator’s des- DOT agency means an agency (or
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ignee. ‘‘operating administration’’) of the

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Federal Transit Admin., DOT § 655.5

United States Department of Transpor- Safety-sensitive function means any of


tation administering regulations re- the following duties, when performed
quiring drug and alcohol testing. See 14 by employees of recipients, subrecipi-
CFR part 121, appendices I and J; 33 ents, operators, or contractors:
CFR part 95; 46 CFR parts 4, 5, and 16; (1) Operating a revenue service vehi-
and 49 CFR parts 199, 219, 382, and 655. cle, including when not in revenue
Employer means a recipient or other service;
entity that provides mass transpor- (2) Operating a nonrevenue service
tation service or which performs a safe- vehicle, when required to be operated
ty-sensitive function for such recipient by a holder of a Commercial Driver’s
or other entity. This term includes License;
subrecipients, operators, and contrac- (3) Controlling dispatch or movement
tors. of a revenue service vehicle;
FTA means the Federal Transit Ad- (4) Maintaining (including repairs,
ministration, an agency of the U.S. De- overhaul and rebuilding) a revenue
partment of Transportation. service vehicle or equipment used in
Performing (a safety-sensitive function) revenue service. This section does not
means a covered employee is consid- apply to the following: an employer
ered to be performing a safety-sen- who receives funding under 49 U.S.C.
sitive function and includes any period 5307 or 5309, is in an area less than
in which he or she is actually per- 200,000 in population, and contracts out
forming, ready to perform, or imme- such services; or an employer who re-
diately available to perform such func- ceives funding under 49 U.S.C. 5311 and
tions. contracts out such services;
Positive rate for random drug testing (5) Carrying a firearm for security
means the number of verified positive purposes.
results for random drug tests con- Vehicle means a bus, electric bus,
ducted under this part plus the number van, automobile, rail car, trolley car,
of refusals of random drug tests re- trolley bus, or vessel. A mass transit
quired by this part, divided by the vehicle is a vehicle used for mass
total number of random drug tests re- transportation or for ancillary serv-
sults (i.e., positive, negative, and refus- ices.
als) under this part. Violation rate for random alcohol test-
Railroad means: ing means the number of 0.04 and above
(1) All forms of non-highway ground random alcohol confirmation test re-
transportation that run on rails or sults conducted under this part plus
electromagnetic guideways, including: the number of refusals of random alco-
(i) Commuter or other short-haul rail hol tests required by this part, divided
passenger service in a metropolitan or by the total number of alcohol random
suburban area, as well as any com- screening tests (including refusals)
muter rail service that was operated by conducted under this part.
the Consolidated Rail Corporation as of [66 FR 42002, Aug. 9, 2001, as amended at 68
January 1, 1979; and FR 75462, Dec. 31, 2003]
(ii) High speed ground transportation
systems that connect metropolitan § 655.5 Stand-down waivers for drug
areas, without regard to whether they testing.
use new technologies not associated (a) An employer subject to this part
with traditional railroads. may petition the FTA for a waiver al-
(2) Such term does not include rapid lowing the employer to stand down, per
transit operations within an urban 49 CFR Part 40, an employee following
area that are not connected to the gen- a report of a laboratory confirmed posi-
eral railroad system of transportation. tive drug test or refusal, pending the
Recipient means an entity receiving outcome of the verification process.
Federal financial assistance under 49 (b) Each petition for a waiver must
U.S.C. 5307, 5309, or 5311; or under 23 be in writing and include facts and jus-
U.S.C. 103(e)(4). tification to support the waiver. Each
Refuse to submit means any cir- petition must satisfy the requirements
cumstance outlined in 49 CFR 40.191 for obtaining a waiver, as provided in
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and 40.261. 49 CFR 40.21.

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§ 655.6 49 CFR Ch. VI (10–1–07 Edition)

(c) Each petition for a waiver must misuse. This policy statement shall in-
be submitted to the Office of Safety clude all of the elements specified in
and Security, Federal Transit Adminis- § 655.15. Each employer shall dissemi-
tration, U.S. Department of Transpor- nate the policy consistent with the
tation, 400 Seventh Street, SW. Wash- provisions of § 655.16.
ington, DC 20590. (b) An education and training pro-
(d) The Administrator may grant a gram which meets the requirements of
waiver subject to 49 CFR 40.21(d). § 655.14.
(c) A testing program, as described in
§ 655.6 Preemption of state and local Subparts C and D of this part, which
laws. meets the requirements of this part
(a) Except as provided in paragraph and 49 CFR Part 40.
(b) of this section, this part preempts (d) Procedures for referring a covered
any state or local law, rule, regulation, employee who has a verified positive
or order to the extent that: drug test result or an alcohol con-
(1) Compliance with both the state or centration of 0.04 or greater to a Sub-
local requirement and any requirement stance Abuse Professional, consistent
in this part is not possible; or with 49 CFR Part 40.
(2) Compliance with the state or local
requirement is an obstacle to the ac- § 655.13 [Reserved]
complishment and execution of any re-
quirement in this part. § 655.14 Education and training pro-
grams.
(b) This part shall not be construed
to preempt provisions of state criminal Each employer shall establish an em-
laws that impose sanctions for reckless ployee education and training program
conduct attributed to prohibited drug for all covered employees, including:
use or alcohol misuse leading to actual (a) Education. The education compo-
loss of life, injury, or damage to prop- nent shall include display and distribu-
erty, whether the provisions apply spe- tion to every covered employee of: in-
cifically to transportation employees formational material and a community
or employers or to the general public. service hot-line telephone number for
employee assistance, if available.
§ 655.7 Starting date for testing pro- (b) Training—(1) Covered employees.
grams. Covered employees must receive at
An employer must have an anti-drug least 60 minutes of training on the ef-
and alcohol misuse testing program in fects and consequences of prohibited
place by the date the employer begins drug use on personal health, safety,
operations. and the work environment, and on the
signs and symptoms that may indicate
Subpart B—Program Requirements prohibited drug use.
(2) Supervisors. Supervisors and/or
§ 655.11 Requirement to establish an other company officers authorized by
anti-drug use and alcohol misuse the employer to make reasonable sus-
program. picion determinations shall receive at
Each employer shall establish an least 60 minutes of training on the
anti-drug use and alcohol misuse pro- physical, behavioral, and performance
gram consistent with the requirements indicators of probable drug use and at
of this part. least 60 minutes of training on the
physical, behavioral, speech, and per-
§ 655.12 Required elements of an anti- formance indicators of probable alco-
drug use and alcohol misuse pro- hol misuse.
gram.
An anti-drug use and alcohol misuse § 655.15 Policy statement contents.
program shall include the following: The local governing board of the em-
(a) A statement describing the em- ployer or operator shall adopt an anti-
ployer’s policy on prohibited drug use drug and alcohol misuse policy state-
and alcohol misuse in the workplace, ment. The statement must be made
including the consequences associated available to each covered employee,
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with prohibited drug use and alcohol and shall include the following:

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Federal Transit Admin., DOT § 655.31

(a) The identity of the person, office, § 655.16 Requirement to disseminate


branch and/or position designated by policy.
the employer to answer employee ques- Each employer shall provide written
tions about the employer’s anti-drug notice to every covered employee and
use and alcohol misuse programs.
to representatives of employee organi-
(b) The categories of employees who zations of the employer’s anti-drug and
are subject to the provisions of this alcohol misuse policies and procedures.
part.
(c) Specific information concerning § 655.17 Notice requirement.
the behavior and conduct prohibited by
this part. Before performing a drug or alcohol
test under this part, each employer
(d) The specific circumstances under
shall notify a covered employee that
which a covered employee will be test-
the test is required by this part. No
ed for prohibited drugs or alcohol mis-
employer shall falsely represent that a
use under this part.
test is administered under this part.
(e) The procedures that will be used
to test for the presence of illegal drugs §§ 655.18–655.20 [Reserved]
or alcohol misuse, protect the em-
ployee and the integrity of the drug
and alcohol testing process, safeguard Subpart C—Prohibited Drug Use
the validity of the test results, and en- § 655.21 Drug testing.
sure the test results are attributed to
the correct covered employee. (a) An employer shall establish a pro-
(f) The requirement that a covered gram that provides testing for prohib-
employee submit to drug and alcohol ited drugs and drug metabolites in the
testing administered in accordance following circumstances: pre-employ-
with this part. ment, post-accident, reasonable sus-
(g) A description of the kind of be- picion, random, and return to duty/fol-
havior that constitutes a refusal to low-up.
take a drug or alcohol test, and a (b) When administering a drug test,
statement that such a refusal con- an employer shall ensure that the fol-
stitutes a violation of the employer’s lowing drugs are tested for:
policy. (1) Marijuana;
(h) The consequences for a covered (2) Cocaine;
employee who has a verified positive (3) Opiates;
drug or a confirmed alcohol test result (4) Amphetamines; and
with an alcohol concentration of 0.04 or (5) Phencyclidine.
greater, or who refuses to submit to a (c) Consumption of these products is
test under this part, including the prohibited at all times.
mandatory requirements that the cov-
ered employee be removed immediately §§ 655.22–655.30 [Reserved]
from his or her safety-sensitive func-
tion and be evaluated by a substance
abuse professional, as required by 49 Subpart D—Prohibited Alcohol Use
CFR Part 40. § 655.31 Alcohol testing.
(i) The consequences, as set forth in
§ 655.35 of subpart D, for a covered em- (a) An employer shall establish a pro-
ployee who is found to have an alcohol gram that provides for testing for alco-
concentration of 0.02 or greater but less hol in the following circumstances:
than 0.04. post-accident, reasonable suspicion,
(j) The employer shall inform each random, and return to duty/follow-up.
covered employee if it implements ele- An employer may also conduct pre-em-
ments of an anti-drug use or alcohol ployment alcohol testing.
misuse program that are not required (b) Each employer shall prohibit a
by this part. An employer may not im- covered employee, while having an al-
pose requirements that are incon- cohol concentration of 0.04 or greater,
sistent with, contrary to, or frustrate from performing or continuing to per-
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the provisions of this part. form a safety-sensitive function.

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§ 655.32 49 CFR Ch. VI (10–1–07 Edition)

§ 655.32 On duty use. (1) The employee’s alcohol concentra-


tion measures less than 0.02; or
Each employer shall prohibit a cov-
(2) The start of the employee’s next
ered employee from using alcohol while
regularly scheduled duty period, but
performing safety-sensitive functions. not less than eight hours following ad-
No employer having actual knowledge ministration of the test.
that a covered employee is using alco- (b) Except as provided in paragraph
hol while performing safety-sensitive (a) of this section, no employer shall
functions shall permit the employee to take any action under this part against
perform or continue to perform safety- an employee based solely on test re-
sensitive functions. sults showing an alcohol concentration
less than 0.04. This does not prohibit an
§ 655.33 Pre-duty use.
employer with authority independent
(a) General. Each employer shall pro- of this part from taking any action
hibit a covered employee from using al- otherwise consistent with law.
cohol within 4 hours prior to per-
forming safety-sensitive functions. No §§ 655.36–655.40 [Reserved]
employer having actual knowledge
that a covered employee has used alco- Subpart E—Types of Testing
hol within four hours of performing a
safety-sensitive function shall permit § 655.41 Pre-employment drug testing.
the employee to perform or continue to (a)(1) Before allowing a covered em-
perform safety-sensitive functions. ployee or applicant to perform a safe-
(b) On-call employees. An employer ty-sensitive function for the first time,
shall prohibit the consumption of alco- the employer must ensure that the em-
hol for the specified on-call hours of ployee takes a pre-employment drug
each covered employee who is on-call. test administered under this part with
The procedure shall include: a verified negative result. An employer
(1) The opportunity for the covered may not allow a covered employee, in-
employee to acknowledge the use of al- cluding an applicant, to perform a safe-
cohol at the time he or she is called to ty-sensitive function unless the em-
report to duty and the inability to per- ployee takes a drug test administered
form his or her safety-sensitive func- under this part with a verified negative
tion. result.
(2) The requirement that the covered (2) When a covered employee or appli-
employee take an alcohol test, if the cant has previously failed or refused a
covered employee has acknowledged pre-employment drug test adminis-
the use of alcohol, but claims ability to tered under this part, the employee
perform his or her safety-sensitive must provide the employer proof of
function. having successfully completed a refer-
ral, evaluation and treatment plan as
§ 655.34 Use following an accident. described in § 655.62.
(b) An employer may not transfer an
Each employer shall prohibit alcohol employee from a nonsafety-sensitive
use by any covered employee required function to a safety-sensitive function
to take a post-accident alcohol test until the employee takes a pre-employ-
under § 655.44 for eight hours following ment drug test administered under this
the accident or until he or she under- part with a verified negative result.
goes a post-accident alcohol test, (c) If a pre-employment drug test is
whichever occurs first. canceled, the employer shall require
the covered employee or applicant to
§ 655.35 Other alcohol-related conduct. take another pre-employment drug test
(a) No employer shall permit a cov- administered under this part with a
ered employee tested under the provi- verified negative result.
sions of subpart E of this part who is (d) When a covered employee or ap-
found to have an alcohol concentration plicant has not performed a safety-sen-
of 0.02 or greater but less than 0.04 to sitive function for 90 consecutive cal-
perform or continue to perform safety- endar days regardless of the reason,
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sensitive functions, until: and the employee has not been in the

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Federal Transit Admin., DOT § 655.44

employer’s random selection pool dur- signs and symptoms of drug use and al-
ing that time, the employer shall en- cohol misuse must make the required
sure that the employee takes a pre-em- observations.
ployment drug test with a verified neg- (c) Alcohol testing is authorized
ative result. under this section only if the observa-
tions required by paragraph (b) of this
§ 655.42 Pre-employment alcohol test- section are made during, just pre-
ing. ceding, or just after the period of the
An employer may, but is not required workday that the covered employee is
to, conduct pre-employment alcohol required to be in compliance with this
testing under this part. If an employer part. An employer may direct a cov-
chooses to conduct pre-employment al- ered employee to undergo reasonable
cohol testing, the employer must com- suspicion testing for alcohol only while
ply with the following requirements: the employee is performing safety-sen-
(a) The employer must conduct a pre- sitive functions; just before the em-
employment alcohol test before the ployee is to perform safety-sensitive
first performance of safety-sensitive functions; or just after the employee
functions by every covered employee has ceased performing such functions.
(whether a new employee or someone (d) If an alcohol test required by this
who has transferred to a position in- section is not administered within two
volving the performance of safety-sen- hours following the determination
sitive functions). under paragraph (b) of this section, the
(b) The employer must treat all cov- employer shall prepare and maintain
ered employees performing safety-sen- on file a record stating the reasons the
sitive functions the same for the pur- alcohol test was not promptly adminis-
pose of pre-employment alcohol testing tered. If an alcohol test required by
(i.e., you must not test some covered this section is not administered within
employees and not others). eight hours following the determina-
(c) The employer must conduct the tion under paragraph (b) of this sec-
pre-employment tests after making a tion, the employer shall cease attempts
contingent offer of employment or to administer an alcohol test and shall
transfer, subject to the employee pass- state in the record the reasons for not
ing the pre-employment alcohol test. administering the test.
(d) The employer must conduct all
pre-employment alcohol tests using the § 655.44 Post-accident testing.
alcohol testing procedures set forth in (a) Accidents. (1) Fatal accidents. (i)
49 CFR Part 40. As soon as practicable following an ac-
(e) The employer must not allow a cident involving the loss of human life,
covered employee to begin performing an employer shall conduct drug and al-
safety-sensitive functions unless the cohol tests on each surviving covered
result of the employee’s test indicates employee operating the mass transit
an alcohol concentration of less than vehicle at the time of the accident.
0.02. Post-accident drug and alcohol testing
of the operator is not required under
§ 655.43 Reasonable suspicion testing. this section if the covered employee is
(a) An employer shall conduct a drug tested under the fatal accident testing
and/or alcohol test when the employer requirements of the Federal Motor Car-
has reasonable suspicion to believe rier Safety Administration rule 49 CFR
that the covered employee has used a 389.303(a)(1) or (b)(1).
prohibited drug and/or engaged in alco- (ii) The employer shall also drug and
hol misuse. alcohol test any other covered em-
(b) An employer’s determination that ployee whose performance could have
reasonable suspicion exists shall be contributed to the accident, as deter-
based on specific, contemporaneous, mined by the employer using the best
articulable observations concerning information available at the time of
the appearance, behavior, speech, or the decision.
body odors of the covered employee. A (2) Nonfatal accidents. (i) As soon as
supervisor(s), or other company offi- practicable following an accident not
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cial(s) who is trained in detecting the involving the loss of human life in

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§ 655.45 49 CFR Ch. VI (10–1–07 Edition)

which a mass transit vehicle is in- essary medical attention for the in-
volved, the employer shall drug and al- jured following an accident or to pro-
cohol test each covered employee oper- hibit a covered employee from leaving
ating the mass transit vehicle at the the scene of an accident for the period
time of the accident unless the em- necessary to obtain assistance in re-
ployer determines, using the best infor- sponding to the accident or to obtain
mation available at the time of the de- necessary emergency medical care.
cision, that the covered employee’s (f) The results of a blood, urine, or
performance can be completely dis- breath test for the use of prohibited
counted as a contributing factor to the drugs or alcohol misuse, conducted by
accident. The employer shall also drug Federal, State, or local officials having
and alcohol test any other covered em- independent authority for the test,
ployee whose performance could have shall be considered to meet the re-
contributed to the accident, as deter- quirements of this section provided
mined by the employer using the best such test conforms to the applicable
information available at the time of Federal, State, or local testing require-
the decision. ments, and that the test results are ob-
(ii) If an alcohol test required by this tained by the employer. Such test re-
section is not administered within two sults may be used only when the em-
hours following the accident, the em- ployer is unable to perform a post-acci-
ployer shall prepare and maintain on dent test within the required period
file a record stating the reasons the al- noted in paragraphs (a) and (b) of this
cohol test was not promptly adminis- section.
tered. If an alcohol test required by
this section is not administered within § 655.45 Random testing.
eight hours following the accident, the
employer shall cease attempts to ad- (a) Except as provided in paragraphs
minister an alcohol test and maintain (b) through (d) of this section, the min-
the record. Records shall be submitted imum annual percentage rate for ran-
to FTA upon request of the Adminis- dom drug testing shall be 50 percent of
trator. covered employees; the random alcohol
(b) An employer shall ensure that a testing rate shall be 10 percent. As pro-
covered employee required to be drug vided in paragraph (b) of this section,
tested under this section is tested as this rate is subject to annual review by
soon as practicable but within 32 hours the Administrator.
of the accident. (b) The Administrator’s decision to
(c) A covered employee who is sub- increase or decrease the minimum an-
ject to post-accident testing who fails nual percentage rate for random drug
to remain readily available for such and alcohol testing is based, respec-
testing, including notifying the em- tively, on the reported positive drug
ployer or the employer representative and alcohol violation rates for the en-
of his or her location if he or she leaves tire industry. All information used for
the scene of the accident prior to sub- this determination is drawn from the
mission to such test, may be deemed by drug and alcohol Management Informa-
the employer to have refused to submit tion System (MIS) reports required by
to testing. this part. In order to ensure reliability
(d) The decision not to administer a of the data, the Administrator shall
drug and/or alcohol test under this sec- consider the quality and completeness
tion shall be based on the employer’s of the reported data, may obtain addi-
determination, using the best available tional information or reports from em-
information at the time of the deter- ployers, and may make appropriate
mination that the employee’s perform- modifications in calculating the indus-
ance could not have contributed to the try’s verified positive results and viola-
accident. Such a decision must be doc- tion rates. Each year, the Adminis-
umented in detail, including the deci- trator will publish in the FEDERAL
sion-making process used to reach the REGISTER the minimum annual per-
decision not to test. centage rates for random drug and al-
(e) Nothing in this section shall be cohol testing of covered employees.
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Federal Transit Admin., DOT § 655.45

rate for random drug and alcohol test- (ii) When the minimum annual per-
ing will be applicable starting January centage rate for random alcohol test-
1 of the calendar year following publi- ing is 25 percent or less, and the data
cation. received under the reporting require-
(c) Rates for drug testing. (1) When ments of § 655.72 for that calendar year
the minimum annual percentage rate indicate that the violation rate is
for random drug testing is 50 percent, equal to or greater than 1.0 percent,
the Administrator may lower this rate the Administrator will increase the
to 25 percent of all covered employees minimum annual percentage rate for
if the Administrator determines that random alcohol testing to 50 percent of
the data received under the reporting all covered employees.
requirements of § 655.72 for the two pre- (e) The selection of employees for
ceding consecutive calendar years indi- random drug and alcohol testing shall
cate that the reported positive rate is be made by a scientifically valid meth-
less than 1.0 percent. od, such as a random number table or a
(2) When the minimum annual per- computer-based random number gener-
centage rate for random drug testing is ator that is matched with employees’
25 percent, and the data received under Social Security numbers, payroll iden-
the reporting requirements of § 655.72 tification numbers, or other com-
for the calendar year indicate that the parable identifying numbers. Under the
reported positive rate is equal to or selection process used, each covered
greater than 1.0 percent, the Adminis- employee shall have an equal chance of
trator will increase the minimum an- being tested each time selections are
nual percentage rate for random drug made.
or random alcohol testing to 50 percent (f) The employer shall randomly se-
of all covered employees. lect a sufficient number of covered em-
(d) Rates for alcohol testing. (1)(i) ployees for testing during each cal-
When the minimum annual percentage endar year to equal an annual rate not
rate for random alcohol testing is 25 less than the minimum annual percent-
percent or more, the Administrator age rates for random drug and alcohol
may lower this rate to 10 percent of all testing determined by the Adminis-
covered employees if the Adminis- trator. If the employer conducts ran-
trator determines that the data re- dom drug and alcohol testing through a
ceived under the reporting require- consortium, the number of employees
ments of § 655.72 for two consecutive to be tested may be calculated for each
calendar years indicate that the viola- individual employer or may be based
tion rate is less than 0.5 percent. on the total number of covered employ-
(ii) When the minimum annual per- ees covered by the consortium who are
centage rate for random alcohol test- subject to random drug and alcohol
ing is 50 percent, the Administrator testing at the same minimum annual
may lower this rate to 25 percent of all percentage rate under this part.
covered employees if the Adminis- (g) Each employer shall ensure that
trator determines that the data re- random drug and alcohol tests con-
ceived under the reporting require- ducted under this part are unan-
ments of § 655.72 for two consecutive nounced and unpredictable, and that
calendar years indicate that the viola- the dates for administering random
tion rate is less than 1.0 percent but tests are spread reasonably throughout
equal to or greater than 0.5 percent. the calendar year. Random testing
(2)(i) When the minimum annual per- must be conducted at all times of day
centage rate for random alcohol test- when safety-sensitive functions are
ing is 10 percent, and the data received performed.
under the reporting requirements of (h) Each employer shall require that
§ 655.72 for that calendar year indicate each covered employee who is notified
that the violation rate is equal to or of selection for random drug or random
greater than 0.5 percent, but less than alcohol testing proceed to the test site
1.0 percent, the Administrator will in- immediately. If the employee is per-
crease the minimum annual percentage forming a safety-sensitive function at
rate for random alcohol testing to 25 the time of the notification, the em-
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§ 655.46 49 CFR Ch. VI (10–1–07 Edition)

employee ceases to perform the safety- § 655.48 Retesting of covered employ-


sensitive function and proceeds to the ees with an alcohol concentration
testing site immediately. of 0.02 or greater but less than 0.04.
(i) A covered employee shall only be If an employer chooses to permit a
randomly tested for alcohol misuse covered employee to perform a safety-
while the employee is performing safe- sensitive function within 8 hours of an
ty-sensitive functions; just before the alcohol test indicating an alcohol con-
employee is to perform safety-sensitive centration of 0.02 or greater but less
functions; or just after the employee than 0.04, the employer shall retest the
has ceased performing such functions. covered employee to ensure compliance
A covered employee may be randomly with the provisions of § 655.35. The cov-
tested for prohibited drug use anytime ered employee may not perform safety-
while on duty. sensitive functions unless the con-
(j) If a given covered employee is sub- firmation alcohol test result is less
ject to random drug and alcohol test- than 0.02.
ing under the testing rules of more
than one DOT agency for the same em- § 655.49 Refusal to submit to a drug or
ployer, the employee shall be subject alcohol test.
to random drug and alcohol testing at (a) Each employer shall require a
the percentage rate established for the covered employee to submit to a post-
calendar year by the DOT agency regu- accident drug and alcohol test required
lating more than 50 percent of the em- under § 655.44, a random drug and alco-
ployee’s function. hol test required under § 655.45, a rea-
(k) If an employer is required to con- sonable suspicion drug and alcohol test
duct random drug and alcohol testing required under § 655.43, or a follow-up
under the drug and alcohol testing drug and alcohol test required under
rules of more than one DOT agency, § 655.47. No employer shall permit an
the employer may— employee who refuses to submit to
(1) Establish separate pools for ran- such a test to perform or continue to
dom selection, with each pool con- perform safety-sensitive functions.
taining the covered employees who are (b) When an employee refuses to sub-
subject to testing at the same required mit to a drug or alcohol test, the em-
rate; or ployer shall follow the procedures out-
(2) Randomly select such employees lined in 49 CFR Part 40.
for testing at the highest percentage
rate established for the calendar year § 655.50 [Reserved]
by any DOT agency to which the em-
ployer is subject. Subpart F—Drug and Alcohol
Testing Procedures
§ 655.46 Return to duty following re-
fusal to submit to a test, verified § 655.51 Compliance with testing pro-
positive drug test result and/or cedures requirements.
breath alcohol test result of 0.04 or The drug and alcohol testing proce-
greater.
dures in 49 CFR Part 40 apply to em-
Where a covered employee refuses to ployers covered by this part, and must
submit to a test, has a verified positive be read together with this part, unless
drug test result, and/or has a confirmed expressly provided otherwise in this
alcohol test result of 0.04 or greater, part.
the employer, before returning the em-
ployee to duty to perform a safety-sen- § 655.52 Substance abuse professional
sitive function, shall follow the proce- (SAP).
dures outlined in 49 CFR Part 40. The SAP must perform the functions
in 49 CFR Part 40.
§ 655.47 Follow-up testing after return-
ing to duty. § 655.53 Supervisor acting as collection
An employer shall conduct follow-up site personnel.
testing of each employee who returns An employer shall not permit an em-
to duty, as specified in 49 CFR Part 40, ployee with direct or immediate super-
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subpart O. visory responsibility or authority over

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Federal Transit Admin., DOT § 655. 71

another employee to serve as the urine §§ 655.63–655.70 [Reserved]


collection person, breath alcohol tech-
nician, or saliva-testing technician for Subpart H—Administrative
a drug or alcohol test of the employee. Requirements
§§ 655.54–655.60 [Reserved] § 655. 71 Retention of records.
(a) General requirement. An employer
Subpart G—Consequences shall maintain records of its anti-drug
and alcohol misuse program as pro-
§ 655.61 Action when an employee has
vided in this section. The records shall
a verified positive drug test result
or has a confirmed alcohol test re- be maintained in a secure location with
sult of 0.04 or greater, or refuses to controlled access.
submit to a test. (b) Period of retention. In determining
compliance with the retention period
(a) (1) Immediately after receiving requirement, each record shall be
notice from a medical review officer maintained for the specified minimum
(MRO) or a consortium/third party ad- period of time as measured from the
ministrator (C/TPA) that a covered em- date of the creation of the record. Each
ployee has a verified positive drug test employer shall maintain the records in
result, the employer shall require that accordance with the following sched-
the covered employee cease performing ule:
a safety-sensitive function. (1) Five years. Records of covered em-
(2) Immediately after receiving no- ployee verified positive drug or alcohol
tice from a Breath Alcohol Technician test results, documentation of refusals
(BAT) that a covered employee has a to take required drug or alcohol tests,
confirmed alcohol test result of 0.04 or and covered employee referrals to the
greater, the employer shall require substance abuse professional, and cop-
that the covered employee cease per- ies of annual MIS reports submitted to
forming a safety-sensitive function. FTA.
(3) If an employee refuses to submit (2) Two years. Records related to the
to a drug or alcohol test required by collection process and employee train-
this part, the employer shall require ing.
that the covered employee cease per- (3) One year. Records of negative drug
forming a safety-sensitive function. or alcohol test results.
(b) Before allowing the covered em- (c) Types of records. The following
ployee to resume performing a safety- specific records must be maintained:
sensitive function, the employer shall (1) Records related to the collection
process:
ensure the employee meets the require-
(i) Collection logbooks, if used.
ments of 49 CFR Part 40 for returning
(ii) Documents relating to the ran-
to duty, including taking a return to
dom selection process.
duty drug and/or alcohol test.
(iii) Documents generated in connec-
§ 655.62 Referral, evaluation, and tion with decisions to administer rea-
treatment. sonable suspicion drug or alcohol tests.
(iv) Documents generated in connec-
If a covered employee has a verified tion with decisions on post-accident
positive drug test result, or has a con- drug and alcohol testing.
firmed alcohol test of 0.04 or greater, or (v) MRO documents verifying exist-
refuses to submit to a drug or alcohol ence of a medical explanation of the in-
test required by this part, the em- ability of a covered employee to pro-
ployer shall advise the employee of the vide an adequate urine or breathe sam-
resources available for evaluating and ple.
resolving problems associated with pro- (2) Records related to test results:
hibited drug use and alcohol misuse, (i) The employer’s copy of the cus-
including the names, addresses, and tody and control form.
telephone numbers of substance abuse (ii) Documents related to the refusal
professionals (SAPs) and counseling of any covered employee to submit to a
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§ 655.72 49 CFR Ch. VI (10–1–07 Edition)

(iii) Documents presented by a cov- pendix H. You may also use the elec-
ered employee to dispute the result of tronic version of the MIS form pro-
a test administered under this part. vided by the DOT. The Administrator
(3) Records related to referral and re- may designate means (e.g., electronic
turn to duty and follow-up testing: program transmitted via the Internet),
Records concerning a covered employ- other than hard-copy, for MIS form
ee’s entry into and completion of the submission. For information on where
treatment program recommended by to submit MIS forms and for the elec-
the substance abuse professional. tronic version of the form, see: http://
(4) Records related to employee transit-safety.volpe.dot.gov/DAMIS.
training: (e) To calculate the total number of
(i) Training materials on drug use covered employees eligible for random
awareness and alcohol misuse, includ- testing throughout the year, as an em-
ing a copy of the employer’s policy on ployer, you must add the total number
prohibited drug use and alcohol misuse. of covered employees eligible for test-
(ii) Names of covered employees at- ing during each random testing period
tending training on prohibited drug use for the year and divide that total by
and alcohol misuse and the dates and the number of random testing periods.
times of such training. Covered employees, and only covered
(iii) Documentation of training pro- employees, are to be in an employer’s
vided to supervisors for the purpose of random testing pool, and all covered
qualifying the supervisors to make a employees must be in the random pool.
determination concerning the need for If you are an employer conducting ran-
drug and alcohol testing based on rea- dom testing more often than once per
sonable suspicion. month (e.g., you select daily, weekly,
(iv) Certification that any training bi-weekly), you do not need to compute
conducted under this part complies this total number of covered employees
with the requirements for such train- rate more than on a once per month
ing. basis. As an employer, you may use a
(5) Copies of annual MIS reports sub- service agent (e.g., C/TPA) to perform
mitted to FTA. random selections for you; and your
covered employees may be part of a
§ 655.72 Reporting of results in a man- larger random testing pool of covered
agement information system. employees. However, you must ensure
(a) Each recipient shall annually pre- that the service agent you use is test-
pare and maintain a summary of the ing at the appropriate percentage es-
results of its anti-drug and alcohol tablished for your industry and that
misuse testing programs performed only covered employees are in the ran-
under this part during the previous cal- dom testing pool.
endar year. (f) If you have a covered employee
(b) When requested by FTA, each re- who performs multi-DOT agency func-
cipient shall submit to FTA’s Office of tions (e.g., an employee drives a para-
Safety and Security, or its designated transit vehicle and performs pipeline
agent, by March 15, a report covering maintenance duties for you), count the
the previous calendar year (January 1 employee only on the MIS report for
through December 31) summarizing the the DOT agency under which he or she
results of its anti-drug and alcohol is random tested. Normally, this will
misuse programs. be the DOT agency under which the
(c) Each recipient shall be respon- employee performs more than 50% of
sible for ensuring the accuracy and his or her duties. Employers may have
timeliness of each report submitted by to explain the testing data for these
an employer, contractor, consortium or employees in the event of a DOT agen-
joint enterprise or by a third party cy inspection or audit.
service provider acting on the recipi- (g) A service agent (e.g., Consortia/
ent’s or employer’s behalf. Third Party Administrator as defined
(d) As an employer, you must use the in 49 CFR part 40) may prepare the MIS
Management Information System report on behalf of an employer. How-
(MIS) form and instructions as re- ever, a company official (e.g., Des-
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quired by 49 CFR part 40, § 40.25 and ap- ignated Employer Representative as

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Federal Transit Admin., DOT § 655.82

defined in 49 CFR part 40) must certify a written request from the covered em-
the accuracy and completeness of the ployee. Subsequent disclosure by the
MIS report, no matter who prepares it. employer is permitted only as ex-
[66 FR 42002, Aug. 9, 2001, as amended at 68
pressly authorized by the terms of the
FR 75462, Dec. 31, 2003] covered employee’s request.
(g) An employer may disclose infor-
§ 655.73 Access to facilities and mation required to be maintained
records. under this part pertaining to a covered
(a) Except as required by law, or ex- employee to the employee or the deci-
pressly authorized or required in this sionmaker in a lawsuit, grievance, or
section, no employer may release infor- other proceeding initiated by or on be-
mation pertaining to a covered em- half of the individual, and arising from
ployee that is contained in records re- the results of a drug or alcohol test
quired to be maintained by § 655.71. under this part (including, but not lim-
(b) A covered employee is entitled, ited to, a worker’s compensation, un-
upon written request, to obtain copies employment compensation, or other
of any records pertaining to the cov- proceeding relating to a benefit sought
ered employee’s use of prohibited drugs by the covered employee.)
or misuse of alcohol, including any (h) An employer shall release infor-
records pertaining to his or her drug or mation regarding a covered employee’s
alcohol tests. The employer shall pro- record as directed by the specific, writ-
vide promptly the records requested by ten consent of the employee author-
the employee. Access to a covered em- izing release of the information to an
ployee’s records shall not be contin- identified person.
gent upon the employer’s receipt of (i) An employer may disclose drug
payment for the production of those and alcohol testing information re-
records. quired to be maintained under this
(c) An employer shall permit access part, pertaining to a covered employee,
to all facilities utilized and records to the State oversight agency or grant-
compiled in complying with the re- ee required to certify to FTA compli-
quirements of this part to the Sec- ance with the drug and alcohol testing
retary of Transportation or any DOT procedures of 49 CFR parts 40 and 655.
agency with regulatory authority over
the employer or any of its employees §§ 655.74–655.80 [Reserved]
or to a State oversight agency author-
ized to oversee rail fixed guideway sys- Subpart I—Certifying Compliance
tems.
(d) An employer shall disclose data § 655.81 Grantee oversight responsi-
for its drug and alcohol testing pro- bility.
grams, and any other information per- A grantee shall ensure that the re-
taining to the employer’s anti-drug and cipients of funds under 49 U.S.C. 5307,
alcohol misuse programs required to be 5309, 5311 or 23 U.S.C. 103(e)(4) comply
maintained by this part, to the Sec- with this part.
retary of Transportation or any DOT
agency with regulatory authority over § 655.82 Compliance as a condition of
the employer or covered employee or financial assistance.
to a State oversight agency authorized (a) General. A recipient may not be
to oversee rail fixed guideway systems, eligible for Federal financial assistance
upon the Secretary’s request or the re- under 49 U.S.C. 5307, 5309, or 5311 or
spective agency’s request. under 23 U.S.C. 103(e)(4), if a recipient
(e) When requested by the National fails to establish and implement an
Transportation Safety Board as part of anti-drug and alcohol misuse program
an accident investigation, employers as required by this part. Failure to cer-
shall disclose information related to tify compliance with these require-
the employer’s drug or alcohol testing ments, as specified in § 655.83, may re-
related to the accident under investiga- sult in the suspension of a grantee’s
tion. eligibility for Federal funding.
(f) Records shall be made available to (b) Criminal violation. A recipient is
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a subsequent employer upon receipt of subject to criminal sanctions and fines

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§ 655.83 49 CFR Ch. VI (10–1–07 Edition)

for false statements or misrepresenta- Subpart C—Role of the State Oversight


tions under 18 U.S.C. 1001. Agency
(c) State’s role. Each State shall cer-
tify compliance on behalf of its 49 659.13 Overview.
U.S.C. 5307, 5309, 5311 or 23 U.S.C. 659.15 System safety program standard.
659.17 System safety program plan: general
103(e)(4) subrecipients, as applicable. In
requirements.
so certifying, the State shall ensure
659.19 System safety program plan: con-
that each subrecipient is complying tents.
with the requirements of this part. A 659.21 System security plan: general re-
section 5307, 5309, 5311 or 103(e)(4) sub- quirements.
recipient, through the administering 659.23 System security plan: contents.
State, is subject to suspension of fund- 659.25 Annual review of system safety pro-
ing from the State if such subrecipient gram plan and system security plan.
is not in compliance with this part. 659.27 Internal safety and security reviews.
659.29 Oversight agency safety and security
§ 655.83 Requirement to certify compli- reviews.
ance. 659.31 Hazard management process.
(a) A recipient of FTA financial as- 659.33 Accident notification.
sistance shall annually certify compli- 659.35 Investigations.
ance, as set forth in § 655.82, to the ap- 659.37 Corrective action plans.
plicable FTA Regional Office. 659.39 Oversight agency reporting to the
(b) A certification must be author- Federal Transit Administration.
ized by the organization’s governing 659.41 Conflict of interest.
659.43 Certification of compliance.
board or other authorizing official, and
must be signed by a party specifically AUTHORITY: 49 U.S.C. 5330.
authorized to do so. SOURCE: 70 FR 22578, Apr. 29, 2005, unless
(c) A recipient will be ineligible for otherwise noted.
further FTA financial assistance if the
recipient fails to establish and imple-
ment an anti-drug and alcohol misuse Subpart A—General Provisions
program in accordance with this part. § 659.1 Purpose.
(d) FTA may determine that a recipi-
ent, who fails to comply with the This part implements 49 U.S.C. 5330
USCG chemical and alcohol testing re- by requiring a state to oversee the
quirements, shall be in noncompliance safety and security of rail fixed guide-
with the alcohol misuse and controlled way systems through a designated
substances testing requirements of this oversight agency.
part. A finding of noncompliance by
FTA may lead to the suspension of eli- § 659.3 Scope.
gibility for Federal public transpor- This part applies only to states with
tation funding. rail fixed guideway systems, as defined
[66 FR 42002, Aug. 9, 2001, as amended at 71 in this part.
FR 69198, Nov. 30, 2006]
§ 659.5 Definitions.
PART 659—RAIL FIXED GUIDEWAY Contractor means an entity that per-
SYSTEMS; STATE SAFETY OVERSIGHT forms tasks required on behalf of the
oversight or rail transit agency. The
Subpart A—General Provisions rail transit agency may not be a con-
tractor for the oversight agency.
Sec. Corrective action plan means a plan
659.1 Purpose.
659.3 Scope.
developed by the rail transit agency
659.5 Definitions. that describes the actions the rail tran-
sit agency will take to minimize, con-
Subpart B—Role of the State trol, correct, or eliminate hazards, and
the schedule for implementing those
659.7 Withholding of funds for noncompli-
ance.
actions.
659.9 Designation of oversight agency. FRA means the Federal Railroad Ad-
659.11 Confidentiality of investigation re- ministration, an agency within the
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ports and security plans. U.S. Department of Transportation.

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Federal Transit Admin., DOT § 659.9

FTA means the Federal Transit Ad- Rail Transit Agency means an entity
ministration, an agency within the that operates a rail fixed guideway sys-
U.S. Department of Transportation. tem.
Hazard means any real or potential Rail Transit-Controlled Property means
condition (as defined in the rail transit property that is used by the rail transit
agency’s hazard management process) agency and may be owned, leased, or
that can cause injury, illness, or death; maintained by the rail transit agency.
damage to or loss of a system, equip- Rail Transit Vehicle means the rail
ment or property; or damage to the en- transit agency’s rolling stock, includ-
vironment. ing but not limited to passenger and
Individual means a passenger; em- maintenance vehicles.
ployee; contractor; other rail transit Safety means freedom from harm re-
facility worker; pedestrian; trespasser; sulting from unintentional acts or cir-
or any person on rail transit-controlled cumstances.
property. Security means freedom from harm
Investigation means the process used resulting from intentional acts or cir-
to determine the causal and contrib- cumstances.
uting factors of an accident or hazard, State means a State of the United
so that actions can be identified to pre- States, the District of Columbia, Puer-
vent recurrence. to Rico, the Northern Mariana Islands,
New Starts Project means any rail Guam, American Samoa, and the Vir-
fixed guideway system funded under gin Islands.
FTA’s 49 U.S.C. 5309 discretionary con- System Safety Program Plan means a
struction program. document developed and adopted by
Oversight Agency means the entity, the rail transit agency, describing its
other than the rail transit agency, des- safety policies, objectives, responsibil-
ignated by the state or several states ities, and procedures.
to implement this part. System Security Plan means a docu-
Passenger means a person who is on ment developed and adopted by the rail
board, boarding, or alighting from a transit agency describing its security
rail transit vehicle for the purpose of policies, objectives, responsibilities,
travel. and procedures.
Passenger Operations means the pe-
riod of time when any aspect of rail Subpart B—Role of the State
transit agency operations are initiated
with the intent to carry passengers. § 659.7 Withholding of funds for non-
Program Standard means a written compliance.
document developed and adopted by (a) The Administrator of the FTA
the oversight agency, that describes may withhold up to five percent of the
the policies, objectives, responsibil- amount required to be distributed to
ities, and procedures used to provide any state or affected urbanized area in
rail transit agency safety and security such state under FTA’s formula pro-
oversight. gram for urbanized areas, if:
Rail Fixed Guideway System means (1) The state in the previous fiscal
any light, heavy, or rapid rail system, year has not met the requirements of
monorail, inclined plane, funicular, this part; and
trolley, or automated guideway that: (2) The Administrator determines
(1) Is not regulated by the Federal that the state is not making adequate
Railroad Administration; and efforts to comply with this part.
(2) Is included in FTA’s calculation of (b) The Administrator may agree to
fixed guideway route miles or receives restore withheld formula funds, if com-
funding under FTA’s formula program pliance is achieved within two years
for urbanized areas (49 U.S.C. 5336); or (See 49 U.S.C. 5330).
(3) Has submitted documentation to
FTA indicating its intent to be in- § 659.9 Designation of oversight agen-
cluded in FTA’s calculation of fixed cy.
guideway route miles to receive fund- (a) General requirement. Each state
ing under FTA’s formula program for with an existing or anticipated rail
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urbanized areas (49 U.S.C. 5336). fixed guideway system regulated by

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§ 659.11 49 CFR Ch. VI (10–1–07 Edition)

this part shall designate an oversight To fulfill this requirement, the affected
agency consistent with the provisions states:
of this section. For a rail fixed guide- (1) May agree to designate one agen-
way system that will operate in only cy of one state, or an agency represent-
one state, the state must designate an ative of all states, to implement the re-
agency of the state, other than the rail quirements in this part; and
transit agency, as the oversight agency (2) In the event multiple states share
to implement the requirements in this oversight responsibility for a rail fixed
part. The state’s designation or re-des- guideway system, the states must en-
ignation of its oversight agency and
sure that the rail fixed guideway sys-
submission of required information as
tem is subject to a single program
specified in this section, are subject to
review by FTA. standard, adopted by all affected
states.
(b) Exception. States which have des-
ignated oversight agencies for purposes (f) Change of designation. Should a
of this part before May 31, 2005 are not state change its designated oversight
required to re-designate to FTA. agency, it shall submit the information
(c) Timing. The state designation of required under paragraph (d) of this
the oversight agency shall: section to FTA within (30) days of its
(1) Coincide with the execution of change. In addition, the new oversight
any grant agreement for a New Starts agency must submit a new initial sub-
project between FTA and a rail transit mission, consistent with § 659.39(b),
agency within the state’s jurisdiction; within (30) days of its designation.
or
(2) Occur before the application by a § 659.11 Confidentiality of investiga-
tion reports and security plans.
rail transit agency for funding under
FTA’s formula program for urbanized (a) A state may withhold an inves-
areas (49 U.S.C. 5336). tigation report that may have been
(d) Notification to FTA. Within (60) prepared or adopted by the oversight
days of designation of the oversight agency from being admitted as evi-
agency, the state must submit to FTA dence or used in a civil action for dam-
the following: ages resulting from a matter men-
(1) The name of the oversight agency tioned in the report.
designated to implement requirements (b) This part does not require public
in this part; availability of the rail transit agency’s
(2) Documentation of the oversight security plan and any referenced proce-
agency’s authority to provide state dures.
oversight;
(3) Contact information for the rep- Subpart C—Role of the State
resentative identified by the des-
ignated oversight agency with respon-
Oversight Agency
sibility for oversight activities; § 659.13 Overview.
(4) A description of the organiza-
tional and financial relationship be- The state oversight agency is respon-
tween the designated oversight agency sible for establishing standards for rail
and the rail transit agency; and safety and security practices and pro-
(5) A schedule for the designated cedures to be used by rail transit agen-
agency’s development of its State Safe- cies within its purview. In addition, the
ty Oversight Program, including the state oversight agency must oversee
projected date of its initial submission, the execution of these practices and
as required in § 659.39(a). procedures, to ensure compliance with
(e) Multiple states. In cases of a rail the provisions of this part. This sub-
fixed guideway system that will oper- part identifies and describes the var-
ate in more than one state, each af- ious requirements for the state over-
fected state must designate an agency sight agency.
of the state, other than the rail transit
agency, as the oversight agency to im-
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Federal Transit Admin., DOT § 659.15

§ 659.15 System safety program stand- approve the rail transit agency’s an-
ard. nual reports on findings, which must be
(a) General requirement. Each state submitted under the signature of the
oversight agency shall develop and dis- rail transit agency’s top management.
tribute a program standard. The pro- (4) Oversight agency safety and security
gram standard is a compilation of proc- review section. This section shall lay
esses and procedures that governs the out the process and criteria to be used
conduct of the oversight program at at least every three years in con-
the state oversight agency level, and ducting a complete review of each af-
provides guidance to the regulated rail fected rail transit agency’s implemen-
transit properties concerning processes tation of its system safety program
and procedures they must have in place plan and system security plan. This
to be in compliance with the state safe- section includes the process to be used
ty oversight program. The program by the affected rail transit agency and
standard and any referenced program the oversight agency to manage find-
procedures must be submitted to FTA ings and recommendations from this
as part of the initial submission. Sub- review. This also includes procedures
sequent revisions and updates must be for notifying the oversight agency be-
submitted to FTA as part of the over- fore the rail transit agency conducts
sight agency’s annual submission. an internal review.
(b) Contents. Each oversight agency (5) Accident notification section. This
shall develop a written program stand- section shall include the specific re-
ard that meets the requirements speci- quirements for the rail transit agency
fied in this part and includes, at a min- to notify the oversight agency of acci-
imum, the areas identified in this sec- dents. This section shall also include
tion. required timeframes, methods of notifi-
(1) Program management section. This cation, and the information to be sub-
section shall include an explanation of mitted by the rail transit agency. Ad-
the oversight agency’s authority, poli- ditional detail on this portion is in-
cies, and roles and responsibilities for cluded in § 659.33 of this part.
providing safety and security oversight (6) Investigations section. This section
of the rail transit agencies within its contains the oversight agency identi-
jurisdiction. This section shall provide fication of the thresholds for incidents
an overview of planned activities to en- that require an oversight agency inves-
sure on-going communication with tigation. The roles and responsibilities
each affected rail transit agency relat- for conducting investigations shall in-
ing to safety and security information, clude: coordination with the rail tran-
as well as FTA reporting requirements, sit agency investigation process, the
including initial, annual and periodic role of the oversight agency in sup-
submissions. porting investigations and findings
(2) Program standard development sec- conducted by the NTSB, review and
tion. This section shall include a de- concurrence of investigation report
scription of the oversight agency’s findings, and procedures for protecting
process for the development, review, the confidentiality of investigation re-
and adoption of the program standard, ports.
the modification and/or update of the (7) Corrective actions section. This sec-
program standard, and the process by tion shall specify oversight agency cri-
which the program standard and any teria for the development of corrective
subsequent revisions are distributed to action plan(s) and the process for the
each affected rail transit agency. review and approval of a corrective ac-
(3) Oversight of rail transit agency in- tion plan developed by the rail transit
ternal safety and security reviews. This agency. This section shall also identify
section shall specify the role of the the oversight agency’s policies for the
oversight agency in overseeing the rail verification and tracking of corrective
transit agency internal safety and se- action plan implementation, and its
curity review process. This includes a process for managing conflicts with the
description of the process used by the rail transit agency relating to inves-
oversight agency to receive rail transit tigation findings and corrective action
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§ 659.17 49 CFR Ch. VI (10–1–07 Edition)

(8) System safety program plan section. (a) A policy statement signed by the
This section shall specify the minimum agency’s chief executive that endorses
requirements to be contained in the the safety program and describes the
rail transit agency’s system safety pro- authority that establishes the system
gram plan. The contents of the system safety program plan.
safety plan are discussed in more detail (b) A clear definition of the goals and
in § 659.19 of this part. This section objectives for the safety program and
shall also specify information to be in- stated management responsibilities to
cluded in the affected rail transit agen- ensure they are achieved.
cy’s system safety program plan relat- (c) An overview of the management
ing to the hazard management process, structure of the rail transit agency, in-
including requirements for on-going cluding:
communication and coordination relat- (1) An organization chart;
ing to the identification, categoriza- (2) A description of how the safety
tion, resolution, and reporting of haz- function is integrated into the rest of
ards to the oversight agency. More de- the rail transit organization; and
tails on the hazard management proc- (3) Clear identification of the lines of
ess are contained in § 659.31 of this part. authority used by the rail transit agen-
This section shall also describe the cy to manage safety issues.
process and timeframe through which (d) The process used to control
the oversight agency must receive, re- changes to the system safety program
view, and approve the rail transit agen- plan, including:
cy system safety program plan. (1) Specifying an annual assessment
(9) System security plan section. This of whether the system safety program
section shall specify the minimum re- plan should be updated; and
quirements to be included in the rail (2) Required coordination with the
transit agency’s system security plan. oversight agency, including time-
More details about the system security frames for submission, revision, and
plan are contained in §§ 659.21 through approval.
659.23 of this part. This section shall
(e) A description of the specific ac-
also describe the process by which the
tivities required to implement the sys-
oversight agency will review and ap-
tem safety program, including:
prove the rail transit agency system
(1) Tasks to be performed by the rail
security program plan. This section
transit safety function, by position and
also shall identify how the state will
management accountability, specified
prevent the system security plan from
in matrices and/or narrative format;
public disclosure.
and
§ 659.17 System safety program plan: (2) Safety-related tasks to be per-
general requirements. formed by other rail transit depart-
(a) The oversight agency shall re- ments, by position and management
quire the rail transit agency to develop accountability, specified in matrices
and implement a written system safety and/or narrative format.
program plan that complies with re- (f) A description of the process used
quirements in this part and the over- by the rail transit agency to imple-
sight agency’s program standard. ment its hazard management program,
(b) The oversight agency shall review including activities for:
and approve the rail transit agency (1) Hazard identification;
system safety program plan. (2) Hazard investigation, evaluation
(c) After approval, the oversight and analysis;
agency shall issue a formal letter of ap- (3) Hazard control and elimination;
proval to the rail transit agency, in- (4) Hazard tracking; and
cluding the checklist used to conduct (5) Requirements for on-going report-
the review. ing to the oversight agency relating to
hazard management activities and sta-
§ 659.19 System safety program plan: tus.
contents. (g) A description of the process used
The system safety plan shall include, by the rail transit agency to ensure
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Federal Transit Admin., DOT § 659.19

modifications to existing systems, ve- ate compliance with the system safety
hicles, and equipment, which do not re- program plan, including:
quire formal safety certification but (1) Identification of departments and
which may have safety impacts. functions subject to review;
(h) A description of the safety certifi- (2) Responsibility for scheduling re-
cation process required by the rail views;
transit agency to ensure that safety (3) Process for conducting reviews,
concerns and hazards are adequately including the development of check-
addressed prior to the initiation of pas- lists and procedures and the issuing of
senger operations for New Starts and findings;
subsequent major projects to extend, (4) Review of reporting requirements;
rehabilitate, or modify an existing sys- (5) Tracking the status of imple-
tem, or to replace vehicles and equip- mented recommendations; and
ment. (6) Coordination with the oversight
(i) A description of the process used agency.
to collect, maintain, analyze, and dis- (m) A description of the process used
tribute safety data, to ensure that the by the rail transit agency to develop,
safety function within the rail transit maintain, and ensure compliance with
organization receives the necessary in- rules and procedures having a safety
formation to support implementation impact, including:
of the system safety program. (1) Identification of operating and
(j) A description of the process used maintenance rules and procedures sub-
by the rail transit agency to perform ject to review;
accident notification, investigation (2) Techniques used to assess the im-
and reporting, including: plementation of operating and mainte-
(1) Notification thresholds for inter- nance rules and procedures by employ-
nal and external organizations; ees, such as performance testing;
(2) Accident investigation process (3) Techniques used to assess the ef-
and references to procedures; fectiveness of supervision relating to
(3) The process used to develop, im- the implementation of operating and
plement, and track corrective actions maintenance rules; and
that address investigation findings; (4) Process for documenting results
(4) Reporting to internal and external and incorporating them into the hazard
organizations; and management program.
(5) Coordination with the oversight (n) A description of the process used
agency. for facilities and equipment safety in-
(k) A description of the process used spections, including:
by the rail transit agency to develop an (1) Identification of the facilities and
approved, coordinated schedule for all equipment subject to regular safety-re-
emergency management program ac- lated inspection and testing;
tivities, which include: (2) Techniques used to conduct in-
(1) Meetings with external agencies; spections and testing;
(2) Emergency planning responsibil- (3) Inspection schedules and proce-
ities and requirements; dures; and
(3) Process used to evaluate emer- (4) Description of how results are en-
gency preparedness, such as annual tered into the hazard management
emergency field exercises; process.
(4) After action reports and imple- (o) A description of the maintenance
mentation of findings; audits and inspections program, includ-
(5) Revision and distribution of emer- ing identification of the affected facili-
gency response procedures; ties and equipment, maintenance cy-
(6) Familiarization training for pub- cles, documentation required, and the
lic safety organizations; and process for integrating identified prob-
(7) Employee training. lems into the hazard management
(l) A description of the process used process.
by the rail transit agency to ensure (p) A description of the training and
that planned and scheduled internal certification program for employees
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safety reviews are performed to evalu- and contractors, including:

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§ 659.21 49 CFR Ch. VI (10–1–07 Edition)

(1) Categories of safety-related work part of the rail transit agency’s system
requiring training and certification; safety program plan.
(2) A description of the training and (b) The oversight agency may pro-
certification program for employees hibit a rail transit agency from pub-
and contractors in safety-related posi- licly disclosing the system security
tions; plan.
(3) Process used to maintain and ac- (c) After approving the system secu-
cess employee and contractor training rity plan, the oversight agency shall
records; and issue a formal letter of approval, in-
(4) Process used to assess compliance cluding the checklist used to conduct
with training and certification require- the review, to the rail transit agency.
ments.
(q) A description of the configuration § 659.23 System security plan: con-
management control process, includ- tents.
ing: The system security plan must, at a
(1) The authority to make configura- minimum address the following:
tion changes; (a) Identify the policies, goals, and
(2) Process for making changes; and objectives for the security program en-
(3) Assurances necessary for formally dorsed by the agency’s chief executive.
notifying all involved departments. (b) Document the rail transit agen-
(r) A description of the safety pro- cy’s process for managing threats and
gram for employees and contractors vulnerabilities during operations, and
that incorporates the applicable local, for major projects, extensions, new ve-
state, and federal requirements, includ- hicles and equipment, including inte-
ing: gration with the safety certification
(1) Safety requirements that employ- process;
ees and contractors must follow when (c) Identify controls in place that ad-
working on, or in close proximity to, dress the personal security of pas-
rail transit agency property; and sengers and employees;
(2) Processes for ensuring the em- (d) Document the rail transit agen-
ployees and contractors know and fol- cy’s process for conducting internal se-
low the requirements. curity reviews to evaluate compliance
(s) A description of the hazardous and measure the effectiveness of the
materials program, including the proc- system security plan; and
ess used to ensure knowledge of and (e) Document the rail transit agen-
compliance with program require- cy’s process for making its system se-
ments. curity plan and accompanying proce-
(t) A description of the drug and alco- dures available to the oversight agency
hol program and the process used to for review and approval.
ensure knowledge of and compliance
with program requirements. § 659.25 Annual review of system safe-
(u) A description of the measures, ty program plan and system secu-
controls, and assurances in place to en- rity plan.
sure that safety principles, require- (a) The oversight agency shall re-
ments and representatives are included quire the rail transit agency to con-
in the rail transit agency’s procure- duct an annual review of its system
ment process. safety program plan and system secu-
rity plan.
§ 659.21 System security plan: general (b) In the event the rail transit agen-
requirements. cy’s system safety program plan is
(a) The oversight agency shall re- modified, the rail transit agency must
quire the rail transit agency to imple- submit the modified plan and any sub-
ment a system security plan that, at a sequently modified procedures to the
minimum, complies with requirements oversight agency for review and ap-
in this part and the oversight agency’s proval. After the plan is approved, the
program standard. The system security oversight agency must issue a formal
plan must be developed and maintained letter of approval to the rail transit
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Federal Transit Admin., DOT § 659.31

(c) In the event the rail transit agen- the rail transit agency is in compliance
cy’s system security plan is modified, with its system safety program plan
the rail transit agency must make the and system security plan.
modified system security plan and ac- (h) If the rail transit agency deter-
companying procedures available to mines that findings from its internal
the oversight agency for review, con- safety and security reviews indicate
sistent with requirements specified in that the rail transit agency is not in
§ 659.23(e) of this part. After the plan is compliance with its system safety pro-
approved, the oversight agency shall gram plan or system security plan, the
issue a formal letter of approval to the chief executive must identify the ac-
rail transit agency. tivities the rail transit agency will
take to achieve compliance.
§ 659.27 Internal safety and security
reviews. (i) The oversight agency must for-
mally review and approve the annual
(a) The oversight agency shall re- report.
quire the rail transit agency to develop
and document a process for the per- § 659.29 Oversight agency safety and
formance of on-going internal safety security reviews.
and security reviews in its system safe- At least every three (3) years, begin-
ty program plan. ning with the initiation of rail transit
(b) The internal safety and security agency passenger operations, the over-
review process must, at a minimum: sight agency must conduct an on-site
(1) Describe the process used by the review of the rail transit agency’s im-
rail transit agency to determine if all plementation of its system safety pro-
identified elements of its system safety gram plan and system security plan.
program plan and system security plan Alternatively, the on-site review may
are performing as intended; and be conducted in an on-going manner
(2) Ensure that all elements of the over the three year timeframe. At the
system safety program plan and sys- conclusion of the review cycle, the
tem security plan are reviewed in an oversight agency must prepare and
on-going manner and completed over a issue a report containing findings and
three-year cycle. recommendations resulting from that
(c) The rail transit agency must no- review, which, at a minimum, must in-
tify the oversight agency at least thir- clude an analysis of the effectiveness of
ty (30) days before the conduct of the system safety program plan and
scheduled internal safety and security the security plan and a determination
reviews. of whether either should be updated.
(d) The rail transit agency shall sub-
mit to the oversight agency any check- § 659.31 Hazard management process.
lists or procedures it will use during
the safety portion of its review. (a) The oversight agency must re-
(e) The rail transit agency shall quire the rail transit agency to develop
make available to the oversight agency and document in its system safety pro-
any checklists or procedures subject to gram plan a process to identify and re-
the security portion of its review, con- solve hazards during its operation, in-
sistent with § 659.23(e). cluding any hazards resulting from
(f) The oversight agency shall require subsequent system extensions or modi-
the rail transit agency to annually sub- fications, operational changes, or other
mit a report documenting internal changes within the rail transit envi-
safety and security review activities ronment.
and the status of subsequent findings (b) The hazard management process
and corrective actions. The security must, at a minimum:
part of this report must be made avail- (1) Define the rail transit agency’s
able for oversight agency review, con- approach to hazard management and
sistent with § 659.23(e). the implementation of an integrated
(g) The annual report must be accom- system-wide hazard resolution process;
panied by a formal letter of certifi- (2) Specify the sources of, and the
cation signed by the rail transit agen- mechanisms to support, the on-going
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§ 659.33 49 CFR Ch. VI (10–1–07 Edition)

(3) Define the process by which iden- § 659.35 Investigations.


tified hazards will be evaluated and
(a) The oversight agency must inves-
prioritized for elimination or control;
(4) Identify the mechanism used to tigate, or cause to be investigated, at a
track through resolution the identified minimum, any incident involving a rail
hazard(s); transit vehicle or taking place on rail
(5) Define minimum thresholds for transit-controlled property meeting
the notification and reporting of haz- the notification thresholds identified
ard(s) to oversight agencies; and in § 659.33(a).
(6) Specify the process by which the (b) The oversight agency must use its
rail transit agency will provide on- own investigation procedures or those
going reporting of hazard resolution that have been formally adopted from
activities to the oversight agency. the rail transit agency and that have
been submitted to FTA.
§ 659.33 Accident notification. (c) In the event the oversight agency
(a) The oversight agency must re- authorizes the rail transit agency to
quire the rail transit agency to notify conduct investigations on its behalf, it
the oversight agency within two (2) must do so formally and require the
hours of any incident involving a rail rail transit agency to use investigation
transit vehicle or taking place on rail procedures that have been formally ap-
transit-controlled property where one proved by the oversight agency.
or more of the following occurs: (d) Each investigation must be docu-
(1) A fatality at the scene; or where mented in a final report that includes a
an individual is confirmed dead within description of investigation activities,
thirty (30) days of a rail transit-related identified causal and contributing fac-
incident; tors, and a corrective action plan.
(2) Injuries requiring immediate med- (e) A final investigation report must
ical attention away from the scene for be formally adopted by the oversight
two or more individuals; agency for each accident investigation.
(3) Property damage to rail transit (1) If the oversight agency has con-
vehicles, non-rail transit vehicles, ducted the investigation, it must for-
other rail transit property or facilities mally transmit its final investigation
and non-transit property that equals or report to the rail transit agency.
exceeds $25,000; (2) If the oversight agency has au-
(4) An evacuation due to life safety thorized an entity other than itself (in-
reasons; cluding the rail transit agency) to con-
(5) A collision at a grade crossing;
duct the accident investigation on its
(6) A main-line derailment;
behalf, the oversight agency must re-
(7) A collision with an individual on a
view and formally adopt the final in-
rail right of way; or
vestigation report.
(8) A collision between a rail transit
vehicle and a second rail transit vehi- (3) If the oversight agency does not
cle, or a rail transit non-revenue vehi- concur with the findings of the rail
cle. transit agency investigation report, it
(b) The oversight agency shall re- must either:
quire rail transit agencies that share (i) Conduct its own investigation ac-
track with the general railroad system cording to paragraphs (b), (d) and (e)(1)
and are subject to the Federal Railroad of this section; or
Administration notification require- (ii) Formally transmit its dissent to
ments, to notify the oversight agency the findings of the accident investiga-
within two (2) hours of an incident for tion, report its dissent to the rail tran-
which the rail transit agency must also sit agency, and negotiate with the rail
notify the Federal Railroad Adminis- transit agency until a resolution on
tration. the findings is reached.
(c) The oversight agency shall iden- (f) The oversight agency shall have
tify in its program standard the meth- the authority to require periodic status
od of notification and the information reports that document investigation
to be provided by the rail transit agen- activities and findings in a time frame
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Federal Transit Admin., DOT § 659.39

§ 659.37 Corrective action plans. 2006, must make its initial submission
(a) The oversight agency must, at a to FTA by May 1, 2006. In states with
minimum, require the development of rail fixed guideway systems initiating
a corrective action plan for the fol- passenger operations after May 1, 2006,
lowing: the designated oversight agency must
(1) Results from investigations, in make its initial submission within the
which identified causal and contrib- time frame specified by the state in its
uting factors are determined by the designation submission, but not later
rail transit agency or oversight agency than at least sixty (60) days prior to
as requiring corrective actions; and initiation of passenger operations. Any
(2) Findings from safety and security time a state changes its designated
reviews performed by the oversight oversight agency to carry out the re-
agency. quirements identified in this part, the
(b) Each corrective action plan new oversight agency must make a new
should identify the action to be taken initial submission to FTA within thir-
by the rail transit agency, an imple- ty (30) days of the designation.
mentation schedule, and the individual (b) An initial submission must in-
or department responsible for the im- clude the following:
plementation. (1) Oversight agency program stand-
(c) The corrective action plan must ard and referenced procedures; and
be reviewed and formally approved by (2) Certification that the system safe-
the oversight agency. ty program plan and the system secu-
(d) The oversight agency must estab- rity plan have been developed, re-
lish a process to resolve disputes be- viewed, and approved.
tween itself and the rail transit agency (c) Annual submission. Before March
resulting from the development or en- 15 of each year, the oversight agency
forcement of a corrective action plan. must submit the following to FTA:
(e) The oversight agency must iden- (1) A publicly available annual report
tify the process by which findings from summarizing its oversight activities
an NTSB accident investigation will be for the preceding twelve months, in-
evaluated to determine whether or not cluding a description of the causal fac-
a corrective action plan should be de- tors of investigated accidents, status of
veloped by either the oversight agency corrective actions, updates and modi-
or rail transit agency to address NTSB fications to rail transit agency pro-
findings. gram documentation, and the level of
(f) The rail transit agency must pro-
effort used by the oversight agency to
vide the oversight agency:
carry out its oversight activities.
(1) Verification that the corrective
action(s) has been implemented as de- (2) A report documenting and track-
scribed in the corrective action plan, or ing findings from three-year safety re-
that a proposed alternate action(s) has view activities, and whether a three-
been implemented subject to oversight year safety review has been completed
agency review and approval; and since the last annual report was sub-
(2) Periodic reports requested by the mitted.
oversight agency, describing the status (3) Program standard and supporting
of each corrective action(s) not com- procedures that have changed during
pletely implemented, as described in the preceding year.
the corrective action plan. (4) Certification that any changes or
(g) The oversight agency must mon- modifications to the rail transit agen-
itor and track the implementation of cy system safety program plan or sys-
each approved corrective action plan. tem security plan have been reviewed
and approved by the oversight agency.
§ 659.39 Oversight agency reporting to (d) Periodic submission. FTA retains
the Federal Transit Administration. the authority to periodically request
(a) Initial submission. Each designated program information.
oversight agency with a rail fixed (e) Electronic reporting. All submis-
guideway system that is in passenger sions to FTA required in this part must
operations as of April 29, 2005 or will be submitted electronically using a re-
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§ 659.41 49 CFR Ch. VI (10–1–07 Edition)

§ 659.41 Conflict of interest. SOURCE: 56 FR 932, Jan. 9, 1991, unless oth-


erwise noted.
The oversight agency shall prohibit a
party or entity from providing services § 661.1 Applicability.
to both the oversight agency and rail Unless otherwise noted, this part ap-
transit agency when there is a conflict plies to all federally assisted procure-
of interest, as defined by the state. ments using funds authorized by the
§ 659.43 Certification of compliance. Federal Mass Transit Act of 1964, as
amended; 23 U.S.C. 103(e)(4); and sec-
(a) Annually, the oversight agency tion 14 of the National Capital Trans-
must certify to the FTA that it has portation Act of 1969, as amended.
complied with the requirements of this
part. EFFECTIVE DATE NOTE: At 72 FR 53696,
Sept. 20, 2007, § 661.1 was amended by remov-
(b) The oversight agency must sub- ing ‘‘Federal Mass Transit Act of 1964, as
mit each certification electronically to amended’’ and adding in its place ‘‘49 U.S.C.
FTA using a reporting system specified 5323(j)’’, effective Oct. 22, 2007.
by FTA.
(c) The oversight agency must main- § 661.3 Definitions.
tain a signed copy of each annual cer- As used in this part:
tification to FTA, subject to audit by Act means the Surface Transpor-
FTA. tation Assistance Act of 1982 (Pub. L.
97–424), as amended by the Safe, Ac-
PART 661—BUY AMERICA countable, Flexible, Efficient Trans-
REQUIREMENTS portation Equity Act: A Legacy for
Users (Pub. L. 109–59).
Sec. Administrator means the Adminis-
661.1 Applicability. trator of FTA, or designee.
661.3 Definitions. Component means any article, mate-
661.5 General requirements. rial, or supply, whether manufactured
661.6 Certification requirements for pro- or unmanufactured, that is directly in-
curement of steel or manufactured prod- corporated into the end product at the
ucts. final assembly location.
661.7 Waivers. Contractor means a party to a third
661.9 Application for waivers.
party contract other than the grantee.
661.11 Rolling stock procurements.
FTA means the Federal Transit Ad-
661.12 Certification requirement for pro-
curement of buses, other rolling stock ministration.
and associated equipment. Grantee means any entity that is a
661.13 Grantee responsibility. recipient of FTA funds.
661.15 Investigation procedures. Manufactured product means an item
661.17 Failure to comply with certification. produced as a result of the manufac-
661.18 Intentional violations. turing process.
661.19 Sanctions. Manufacturing process means the ap-
661.20 Rights of parties. plication of processes to alter the form
661.21 State Buy America provisions. or function of materials or of elements
AUTHORITY: 49 U.S.C. 5323(j) (formerly sec. of the product in a manner adding
165, Pub. L. 97–424; as amended by sec. 337, value and transforming those materials
Pub. L. 100–17, sec. 1048, Pub. L. 102–240, sec. or elements so that they represent a
3020(b), Pub. L. 105–178, and sec. 3023(i) and new end product functionally different
(k), Pub. L. 109–59); 49 CFR 1.51. from that which would result from
EFFECTIVE DATE NOTE: At 72 FR 53696, mere assembly of the elements or ma-
Sept. 20, 2007, the authority citation was re- terials.
vised, effective Oct. 22, 2007. For the conven- Negotiated procurement means a con-
ience of the user, the revised text is set forth tract awarded using other than sealed
as follows: bidding procedures.
AUTHORITY: 49 U.S.C. 5323(j) (formerly sec.
Rolling stock means transit vehicles
165 of the Surface Transportation Assistance
Act of 1982 (Pub. L. 97–424); as amended by such as buses, vans, cars, railcars, loco-
sec. 337, Pub. L. 100–17; sec. 1048, Pub. L. 102– motives, trolley cars and buses, and
240; sec. 3020(b), Pub. L. 105–178; and sec. ferry boats, as well as vehicles used for
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3023(i) and (k), Pub. L. 109–59); 49 CFR 1.51. support services.

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Federal Transit Admin., DOT § 661.5

SAFETEA–LU means the Safe, Ac- consisting of individual components, wheth-


countable, Flexible, Efficient Trans- er separate or interconnected by piping,
portation Equity Act: A Legacy for transmission devices, electrical cables or cir-
cuitry, or by other devices, which are in-
Users (Pub. L. 109–59). tended to contribute together to a clearly
United States means the several defined function. Factors to consider in de-
States, the Commonwealth of Puerto termining whether a system constitutes an
Rico, the District of Columbia, Guam, end product include: Whether performance
American Samoa, the Virgin Islands, warranties apply to an integrated system
and the Commonwealth of the North- (regardless of whether components are sepa-
ern Mariana Islands. rately warranteed); whether products per-
form on an integrated basis with other prod-
[71 FR 14117, Mar. 21, 2006] ucts in a system, or are operated independ-
EFFECTIVE DATE NOTE: At 72 FR 53696, ently of associated products in the system;
Sept. 20, 2007, § 661.3 was revised, effective or whether transit agencies routinely pro-
Oct. 22, 2007. For the convenience of the user, cure a product separately (other than as re-
the revised text is set forth as follows: placement or spare parts).
United States means the several States, the
§ 661.3 Definitions. Commonwealth of Puerto Rico, the District
As used in this part: of Columbia, Guam, American Samoa, the
Act means the Federal Public Transpor- U.S. Virgin Islands, and the Commonwealth
tation Law (49 U.S.C. Chapter 53). of the Northern Mariana Islands.
Administrator means the Administrator of APPENDIX A TO § 661.3—END PRODUCTS
FTA, or designee.
Component means any article, material, or The following is a list of representative
supply, whether manufactured or unmanu- end products that are subject to the require-
factured, that is directly incorporated into ments of Buy America. This list is represent-
the end product at the final assembly loca- ative, not exhaustive.
tion. (1) Rolling stock end products: All individual
Contractor means a party to a third party items identified as rolling stock in § 661.3
contract other than the grantee. (e.g., buses, vans, cars, railcars, locomotives,
End product means any vehicle, structure, trolley cars and buses, ferry boats, as well as
product, article, material, supply, or system, vehicles used for support services); train con-
which directly incorporates constituent trol, communication, and traction power
components at the final assembly location, equipment that meets the definition of end
that is acquired for public use under a feder- product at § 661.3 (e.g., a communication or
ally-funded third-party contract, and which traction power system).
is ready to provide its intended end function (2) Steel and iron end products: Items made
or use without any further manufacturing or primarily of steel or iron such as structures,
assembly change(s). A list of representative bridges, and track work, including running
end products is included at Appendix A to rail, contact rail, and turnouts.
this section.