Notice2024-22161
Urbanized Areas Formula Grant Programs Guidance, Final Circular
Primary source
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Published
September 27, 2024
Issuing agencies
Transportation DepartmentFederal Transit Administration
Abstract
The Federal Transit Administration (FTA) has finalized a new circular entitled, "Urbanized Areas Formula Grant Programs Guidance," which consolidates and replaces the circulars for the Urbanized Area Formula Grants Program (FTA Circular C 9030.1), the State of Good Repair Grants Program (FTA Circular C 5300.1), and the Urbanized Area formula component of the Grants for Buses and Bus Facilities Program (FTA Circular C 5100.1). The update and consolidation of the circulars incorporate provisions from the Fixing America's Surface Transportation (FAST) Act; the Bipartisan Infrastructure Law (BIL), enacted as the Infrastructure Investment and Jobs Act; the Uniform Administrative Requirements for Federal awards to non-Federal entities; and current FTA policies and procedures. This notice responds to the comments FTA received on the proposed circular, which was published in the Federal Register on July 12, 2023.
Full Text
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[Federal Register Volume 89, Number 188 (Friday, September 27, 2024)]
[Notices]
[Pages 79350-79357]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-22161]
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DEPARTMENT OF TRANSPORTATION
Federal Transit Administration
[Docket No. FTA-2023-0009]
Urbanized Areas Formula Grant Programs Guidance, Final Circular
AGENCY: Federal Transit Administration (FTA), Department of
Transportation (DOT).
ACTION: Notice of availability of final circular and response to
comments.
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SUMMARY: The Federal Transit Administration (FTA) has finalized a new
circular entitled, ``Urbanized Areas Formula Grant Programs Guidance,''
which consolidates and replaces the circulars for the Urbanized Area
Formula Grants Program (FTA Circular C 9030.1), the State of Good
Repair Grants Program (FTA Circular C 5300.1), and the Urbanized Area
formula component of the Grants for Buses and Bus Facilities Program
(FTA Circular C 5100.1). The update and consolidation of the circulars
incorporate provisions from the Fixing America's Surface Transportation
(FAST) Act; the Bipartisan Infrastructure Law (BIL), enacted as the
Infrastructure Investment and Jobs Act; the Uniform Administrative
Requirements for Federal awards to non-Federal entities; and current
FTA policies and procedures. This notice responds to the comments FTA
received on the proposed circular, which was published in the Federal
Register on July 12, 2023.
DATES: The applicable date of this circular is November 1, 2024.
ADDRESSES: One may view the comments at docket number FTA-2023-0009.
For access to the docket, please visit <a href="https://www.regulations.gov">https://www.regulations.gov</a> or
the Docket Operations office located in the West Building of the United
States Department of Transportation, Room W12-140, 1200 New Jersey
Avenue SE, Washington, DC 20590, between 9 a.m. and 5 p.m. Monday
through Friday.
FOR FURTHER INFORMATION CONTACT: For State of Good Repair Grant program
questions, Ciara Williams, Office of Transit Programs, Federal Transit
Administration, 1200 New Jersey Ave. SE, Room E44-412, Washington, DC
20590, phone: (202) 366-8954, or email, <a href="/cdn-cgi/l/email-protection#9cfff5fdeefdb2ebf5f0f0f5fdf1efdcf8f3e8b2fbf3ea"><span class="__cf_email__" data-cfemail="6b08020a190a451c020707020a06182b0f041f450c041d">[email protected]</span></a>. For
Urbanized Area Formula Grant program questions, Nichole Neal, Office of
Transit Programs, Federal Transit Administration, 1200 New Jersey Ave.
SE, Room E44-451, Washington, DC 20590, phone: (202) 366-7865, or
email, <a href="/cdn-cgi/l/email-protection#2d43444e454241480343484c416d494259034a425b"><span class="__cf_email__" data-cfemail="147a7d777c7b78713a7a71757854707b603a737b62">[email protected]</span></a>. For Buses and Bus Facilities program
questions, Kirsten Wiard-Bauer, Office of Transit Programs, Federal
Transit Administration, 1200 New Jersey Ave. SE, Washington, DC 20590,
phone: (202) 366-7052, or email, <a href="/cdn-cgi/l/email-protection#0962607b7a7d6c67277e60687b6d246b687c6c7b496d667d276e667f"><span class="__cf_email__" data-cfemail="03686a717077666d2d746a6271672e616276667143676c772d646c75">[email protected]</span></a>. For legal
questions, Jerry Stenquist, Office of Chief Counsel, same address, Room
E56-314, phone: (202) 493-8020, or email, <a href="/cdn-cgi/l/email-protection#12587760606b3c4166777c63677b616652767d663c757d64"><span class="__cf_email__" data-cfemail="5f153a2d2d26710c2b3a312e2a362c2b1f3b302b71383029">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Introduction
II. Response to Public Comments
A. Comments for Which No Changes Were Made
B. Changes Based on Public Comments
III. Other Changes
I. Introduction
This notice announces the availability of FTA Circular C 9050.1A,
``Urbanized Areas Formula Grant Programs Guidance,'' which is a
consolidation of guidance for the administration of grants for the
Urbanized Area Formula Grants Program under 49 U.S.C. 5307 (FTA
Circular C 9030.1), State of Good Repair Grants Program under 49 U.S.C.
5337 (FTA Circular C 5300.1), and the urbanized area formula component
of the Grants for Buses and Bus Facilities Program under 49 U.S.C.
5339(a) (FTA Circular C 5100.1). The C 9050.1A circular replaces these
three circulars. Additionally, this circular incorporates provisions of
the FAST Act (Pub. L. 114-94) and the Infrastructure Investment and
Jobs Act (Pub. L. 117-58) and includes program-specific
[[Page 79351]]
guidance for these formula programs. Additional requirements for all
grant programs are identified in FTA's Award Management Requirements
Circular C 5010.1. The applicable date of C 9050.1A is November 1,
2024.
The C 9050.1A circular consolidates and summarizes programmatic
information, streamlines pre-existing guidance from the three previous
program circulars, and reduces duplication of information provided
between the Urbanized Area Formula Programs circular and FTA's other
topic-specific circulars, including by moving certain text applicable
to most or all of FTA's grant programs to FTA's Award Management
Requirements Circular C 5010.1.
Additionally, C 9050.1A clarifies a number of policy issues as
interpreted and applied by FTA. These clarifications address topics in
the previous program circulars (C 9030.1, C 5300.1, and C 5100.1),
including: how funds are apportioned; reallocations or transfers of
apportionments; consolidation of grants to insular areas; intermodal
use of formula funds; eligible projects and activities for each formula
program; operating assistance limitations and exceptions; capital cost
of contracting; the role of transportation network companies in
providing public transportation services; period of availability to
obligate funds flexed to the FTA formula programs from the Federal
Highway Administration (FHWA); planning requirements; pre-award
authority; revisions to required planning documents as a result of
post-award modifications; and requirements pertaining to fares charged
to seniors and persons with disabilities.
II. Response to Public Comments
FTA published a notice in the Federal Register on July 12, 2023 (88
FR 44440), seeking public comment on a proposed version of Circular C
9050.1. FTA received 115 comments from 30 unique commenters. FTA
reviewed the comments and discusses below the changes that FTA made in
the final circular based on the public comments. FTA also addresses
below the categories of comments for which no changes were made in the
final circular. FTA appreciates the commenters who expressed support
for updates in the circular, as well as those who provided feedback on
administrative non-substantive changes, such as recommending
corrections for typographical errors and alternative pagination
methods. FTA has reviewed and made those changes to the final circular,
as needed.
A. Comments for Which No Changes Were Made
Comments Outside the Scope of FTA C 9050.1A
FTA received comments for which no changes were made because FTA
has determined that the topics were outside of the scope of this
circular. Topics that were outside the scope of the circular included:
a request that FTA increase the size or scope of grants; inquiring
whether FTA will require a subrecipient to ensure its contractors pay a
livable wage; a request for information about financing programs
administered by the U.S. DOT Build America Bureau; and updating
guidance outside of FTA C 9050.1A. FTA also determines the following
topics were outside the scope of the circular, although it discusses
them in further detail because they were raised by more than one
commenter:
Comment: Three commenters asked which version of the C 5010.1
``Award Management Requirements'' circular should be referenced in C
9050.1A.
FTA Response: In the proposed C 9050.1A, FTA referenced that FTA
planned to propose updates to C 5010.1E, which FTA published for public
notice and comment in the Federal Register on February 14, 2024 (89 FR
11334). The final C 9050.1A references C 5010.1F, which also is being
published on this date.
Comment: Two commenters requested extension of the public comment
period for C 9050.1A to accommodate the public comment period for
proposed C 5010.1F. One commenter asked that FTA publish responses to
comments on proposed C 5010.1F before taking comments on proposed C
9050.1A. The other commenter asked that FTA extend the comment period
for proposed C 9050.1A to close simultaneously with comment period for
C 5010.1F.
FTA Response: The public comment period for proposed C 9050.1A
closed on September 11, 2023, and proposed C 5010.1F was not published
until February 14, 2024. Thus, it was not possible for FTA to extend
the public comment period for proposed C 9050.1A to coincide with the
comment period for proposed C 5010.1F. FTA, however, made proposed C
9050.1A available for reference during the subsequent C 5010.1F public
comment review period in response to these requests. FTA has revised
the circulars concurrently and withheld publishing the final C 9050.1A
until after its review of the comments received in response to the C
5010.1F Federal Register notice requesting public comment. To the
extent that a topic is related to both circulars, commenters were able
to comment during either comment period, and FTA considered any comment
that applied to both circulars while both circulars were under
revision.
Comment: Three commenters requested more information about Transit
Asset Management (TAM) requirements, including adding overall policies,
principles, strategies, organizational structure, and objectives that
inform the creation and implementation of TAM plans. Furthermore,
commenters sought more specificity regarding TAM review schedules,
monitoring asset performance, overlap with the metropolitan planning
organization (MPO) planning process, and providing guidance on useful
life and asset life cycles.
FTA Response: All recipients and subrecipients of Federal financial
assistance under 49 U.S.C. chapter 53 that own, operate, or manage
capital assets used for providing public transportation must develop a
TAM plan. Clarity and guidance concerning TAM requirements are
important; however, the requested policy, guidance, and clarification
regarding these TAM requirements is outside the scope of the urbanized
area formula grant programs discussed in C 9050.1A. Because TAM
requirements apply to most FTA recipients across many FTA grant
programs, FTA ensures consistency and reduces duplicative information
by providing TAM information and resources independently of the
circulars on a publicly available website, <a href="https://www.transit.dot.gov/TAM">https://www.transit.dot.gov/TAM</a>. FTA will consider these comments during future updates to its TAM
guidance.
Comment: One commenter provided comments focused on safety
technology, which requested that FTA update the model bus safety
program to account for advances in technology since the program was
last amended, including an update to include a mandate for advanced
driver assistance systems (ADAS) on transit vehicles.
FTA Response: FTA acknowledges the importance of safety technology.
The substance of these comments, however, is outside the scope of the
urbanized area formula grant programs discussed in C 9050.1A. FTA
provides and maintains safety information and resources independently
of the circulars on a publicly available website, <a href="https://www.transit.dot.gov/regulations-and-guidance/safety/transit-system-safety">https://www.transit.dot.gov/regulations-and-guidance/safety/transit-system-safety</a>.
Comment: One commenter requested additional guidance or training
focused on responsibilities of MPOs during the metropolitan
transportation planning process.
[[Page 79352]]
FTA Response: MPOs play an integral role in the planning and
approval of transportation projects, including those financed with
formula funding offered through 49 U.S.C. 5307, 5337, and 5339(a).
However, the commenter's proposals are outside of the scope of the
formula funding programs discussed in the circular. FTA acknowledges
that additional technical assistance may be beneficial and will
consider the substance of the comments in any future training and
guidance provided to recipients regarding MPO programs. Please also see
FTA's resources about MPOs at <a href="https://www.transit.dot.gov/regulations-and-guidance/transportation-planning/metropolitan-planning-organization-mpo">https://www.transit.dot.gov/regulations-and-guidance/transportation-planning/metropolitan-planning-organization-mpo</a>.
Comment: One commenter requested FTA to include intercity bus
considerations as a part of planning justifications in Chapter IV of
the circular. The commenter also noted that FTA's circular, FTA C
8100.1D ``Program Guidance for Metropolitan Planning and State Planning
and Research Program Grants,'' refers to the need for States and MPOs
to provide intercity bus operators and other stakeholders a reasonable
opportunity to comment on transportation plans. The commenter requested
the C 9050.1A section on planning justifications require improved
timely intercity bus consultation processes by States and MPOs. The
commenter also provided recommendations on the preferred method for the
States and MPOs to engage with intercity bus carriers and the timing
for when they can provide input on plans. Similarly, the commenter
requested FTA highlight the intercity bus consultation component of
planning under Chapter V where additional planning requirements are
discussed. The commenter also noted that the language in Chapter V
stating that the local coordinated planning process ``may also include
consideration of the intercity bus transportation needs of the targeted
population of seniors and individuals with disabilities'' is too
permissive.
Response: FTA declines to make a change in response to the
comments. FTA declines to incorporate the recommendations under the
planning justifications section in Chapter IV or in Chapter V in this
circular because the more appropriate venue for planning-specific
guidance is FTA C 8100.1D, which addresses the planning requirements
carried out by States and MPOs. The scope of C 9050.1A, on the other
hand, is to address the administration of urbanized area formula grant
program funding under Sections 5307, 5337, and 5339(a), in which there
are no provisions regarding intercity bus.
Comment: One commenter requested continued engagement with MPOs and
other stakeholders and requested FTA provide a cross-reference guide to
assist MPOs in understanding the updates in terminology in C 9050.1A.
Response: FTA will continue to engage with recipients, applicants,
and the public to communicate changes resulting from the consolidation
of the previous circulars into C 9050.1A. FTA's engagement will include
outreach that provides explanations of updates to terminology and other
content in the circular.
Comment: One commenter requested more emphasis throughout the
circular on the role private providers of transportation play in the
provision of public transportation services. The commenter requested
that the circular reference coordination with the private sector in the
definition of ``Mobility Management.'' The commenter also requested
that FTA change the reference to ``private nonprofit organizations'' in
Chapter II discussing subrecipient arrangements to ``private
providers.'' Further, the commenter requested that FTA add a reference
to ``operational service planning including consideration of contracted
operations'' as one example of a technical study that could be funded
as a planning activity with Section 5307 funds. Additionally, the
commenter requested that FTA add ``local ride providers'' to the
entities involved in public transportation/human services planning or
an alternative planning process from which Job Access and Reverse
Commute (JARC) projects may be derived.
Response: FTA declines to make changes in response to these
comments. FTA acknowledges the significant role of private
transportation providers in the provision of public transportation
services and the benefit of their consideration in transportation
coordination and public transportation planning processes. However, for
the purposes of this circular, FTA limits the circular's discussion of
private providers' roles in transit to their relevance to Sections
5307, 5337, and 5339(a). FTA further addresses the resources and
benefits of private providers within its guidance on transportation
coordination and planning.
Comments Within the Scope of the Circular That Resulted in No Changes
The following comments regarding the circular resulted in no
changes because either the requests sought changes to statutory
requirements, the topics they raised already are addressed adequately
in the circular, or because the comment is better addressed through
direct guidance from FTA to the commenter.
Comments Requesting Changes to Statutory Requirements
Comment: Two commenters requested that FTA change the maximum
Federal share for Section 5307 operating assistance from 50 percent to
80 percent.
FTA Response: The 50 percent maximum Federal share for operating
assistance is set in statute, 49 U.S.C. 5307(d), and FTA has no
authority to change it.
Comment: Similarly, two commenters requested a change to allow
proceeds from transit fares to be used as local match to FTA financial
assistance.
FTA Response: Generally, financial assistance from FTA may only
fund the permissible Federal share of the ``net project cost'' of
eligible projects for the formula programs covered by C 9050.1A (49
U.S.C. 5307(d), 49 U.S.C. 5337(e), and 49 U.S.C. 5339(a)(7)). The term
``net project cost'' means the part of a project that reasonably cannot
be financed from revenues (49 U.S.C. 5302(13)). Furthermore, 49 U.S.C.
5307(d)(3) and 49 U.S.C. 5339(a)(7)(B) specify the sources of funds
that may be used as match and explicitly exclude ``revenues from
providing public transportation services.''
Comment: Two commenters requested a change to the period of
availability to obligate Section 5307, 5337, and 5339(a) funds to
awards, so that all three sources of formula funds have the same period
of availability. Another commenter requested FTA remove language
addressing Governors' discretion to use Section 5307 program funds
remaining from the State's apportionment for small urbanized areas
(UZAs) 90 days before the expiration of their period of availability,
or alternatively, change the time period from 90 days to one year.
FTA Response: FTA lacks discretion to modify the periods of
availability to obligate formula funds for Section 5307 and 5339(a)
programs because the periods of availability are set forth in 49 U.S.C.
5336(g) and 49 U.S.C. 5339(a)(8), respectively. FTA has already
administratively matched the period of availability for Section 5337
funds with the statutory period governing Section 5339(a) funds.
Similarly, FTA lacks discretion to remove or modify the 90-day time
frame during which Governors may reallocate lapsing Section 5307
program funds because the time frame is established in 49 U.S.C.
5336(f)(3).
[[Page 79353]]
Comment: One commenter requested that the circular require the
Governor or the Governor's designee to consult with the MPO when
redesignating a UZA's designated recipient. The commenter further
requested that FTA require that an MPO's letter of concurrence
accompany the Governor's written notice of redesignation to FTA. The
commenter opined that past redesignation procedures requiring transit
providers' unanimous consensus caused notable challenges in achieving a
timely agreement.
Response: FTA declines to make a change in response to the comment.
FTA has not changed the recipient redesignation process requiring
concurrence by the applicable MPO(s). Further, FTA does not have the
discretion to exclude publicly owned operators of public transportation
from a designation decision because 49 U.S.C. 5302 defines a
``designated recipient'' as ``an entity designated, in accordance with
the planning process under Sections 5303 and 5304, by the Governor of a
State, responsible local officials, and publicly owned operators of
public transportation to receive and apportion amounts made available
under Section 5336 to UZAs of 200,000 or more in population.''
Comment: One commenter requested FTA allow recipients who receive
funds for contiguous but separately defined UZAs to use funds
apportioned to one UZA for capital improvements in another UZA, as long
as the recipient can demonstrate that the funds are being expended
equitably across all areas.
Response: FTA declines to make a change in response to this
comment. FTA does not have the discretion to allow funds apportioned to
one UZA to be used in another UZA when those funds provide no direct
benefit to the apportioned UZA. Such use of funds would circumvent the
apportionment transfer provisions codified in 49 U.S.C. 5336. However,
as detailed at the end of Chapter IV, FTA notes limited flexibility for
the use of UZA-specific funds for capital projects outside of the UZA.
A recipient may use funds apportioned to a UZA outside the UZA for
capital activities that involve mobile capital assets (e.g., rolling
stock acquisition or maintenance) if the capital assets support a
geographically continuous public transportation service that has at
least one passenger access point within the apportioned UZA. Further,
the updated circular clarifies that recipients may use funds
apportioned to a UZA for immobile capital assets (e.g., rail stations,
bus stops and terminals, etc.) located outside the UZA in proportion to
the extent the asset supports transit service provided in the
apportioned UZA based on a reasonable cost allocation methodology.
Topics Already Adequately Addressed or Better Addressed Directly With
Recipients
Comment: One commenter encouraged FTA to exercise discretion to
determine that not all vehicles providing demand-response service be
included in a vehicle count for purposes of complying with 49 U.S.C.
5307(a)(2), colloquially referred to as the `100-bus rule'.
FTA Response: 49 U.S.C. 5307(a)(2) limits a recipient's use of
Section 5307 funds for operating assistance based on the number of
buses operated in peak service. In compliance with the statute, FTA
counts buses operated in peak demand-response service, excluding ADA
complimentary paratransit service. Because common practice of transit
providers operating both fixed-route and demand-response services is to
employ their demand-response fleets for ADA complementary paratransit
service, FTA excludes these operators' demand-response fleets for
purposes of 49 U.S.C. 5307(a)(2). However, for operators that only
provide demand-response service, FTA cannot distinguish that portion of
the fleet used for ADA complementary paratransit service. Therefore,
the bus count for demand-response-only fleets, for purposes of the
thresholds in 49 U.S.C. 5307(a)(2), is determined by counting the
number of demand-response vehicles used in peak service.
Comment: Four commenters requested that FTA provide additional
clarification of eligible expenses under FTA grants. One commenter
requested clarification regarding eligibility of certain activities as
a capital expense; one commenter requested clarification on the
eligibility of fixed guideway under Section 5337; one commenter
requested clarification about the eligibility of art and landscaping
used for flood protection and resiliency; and one commenter asked that
FTA list preventive maintenance in Table IV-1 ``Summary of Eligible
Activities by Formula Grant Program'' as an eligible activity.
Response: FTA declines to make a change in response to these
comments. FTA issues circulars to provide general guidance and
clarification while summarizing applicable Federal law. It would be
impractical to provide this level of specificity for eligible expenses.
Recipients should contact their FTA regional office with specific
eligibility questions.
Comment: One commenter requested the circular include an example
illustrating how to split contract expenses to avoid counting the same
expenses as both operating and capital costs under FTA's capital cost
of contracting policy.
Response: FTA declines to make a change in response to the comment.
The requested examples would either be unduly specific or not expansive
enough. FTA issues circulars to provide general guidance and
clarification while summarizing applicable Federal law. The recipient
should contact its FTA regional office with these eligibility
questions.
Comment: One commenter requested FTA add language stating whether a
subrecipient of Section 5310 funds would also be considered an eligible
subrecipient for the grant programs covered in this circular.
Response: FTA declines to make a change in response to the comment.
FTA considers its guidance sufficient regarding subrecipient
eligibility in the circular, including the potential participation of
non-profit organizations in certain grant programs. FTA issues
circulars to provide general guidance and clarification while
summarizing applicable Federal law. For this purpose, it is generally
impractical to specify the eligibility of entities' grant participation
in other FTA grant programs.
Comment: One commenter requested that FTA include language stating
when a recipient may charge administrative fees to an award for
administration and management of Section 5307, 5337, and 5339(a) grant
awards. Similarly, another commenter noted that FTA should address de
minimis administrative costs, alleging that they are or should be
separate from direct and indirect costs.
Response: FTA declines to make a change in response to the comment.
Under the government-wide Uniform Cost Principles for Federal Awards,
every eligible cost must be either a direct cost or an indirect cost.
(See 2 CFR 200.412 through 200.415 for information about determining
whether a cost is direct or indirect.) This includes costs the
commenter considers administrative in nature. The circular describes
which administrative expenses are eligible. These expenses may
potentially be indirect costs or directly allocable to the award. If
the recipient is referring to administrative expenses associated
specifically with designated recipient responsibilities, Table IV-2,
Urban Formula Programs Capital Eligibility Table, states that those are
not an eligible expense of formula funds.
Comment: In reference to FTA's definition of ``Rehabilitate'' in
Chapter I,
[[Page 79354]]
one commenter opined that the phrase ``including a rebuild and overhaul
as defined in this circular'' may be confusing because these terms are
a reference to the process to cause a capital asset to meet or extend
its planned useful life.
Response: FTA declines to make a change in response to the comment.
FTA disagrees that the use of these terms is confusing.
``Rehabilitate'' is the term used in Section 5339(a) to describe
projects eligible under that section. FTA's definition clarifies that
both rebuilds and overhauls are examples of activities that qualify as
rehabilitation and only pertain to rolling stock. The definition uses
rebuilds and overhauls to further distinguish from standard preventive
maintenance, which is not a form of rehabilitation.
Comment: One commenter requested that the list of Associated
Transit Improvements in Chapter IV include additional examples of
projects that address resiliency issues.
Response: FTA declines to make a change in response to the comment.
The circular only lists projects eligible as Associated Transit
Improvements (ATI) that are in statute. FTA declines to add examples to
the list. It is impractical to include additional specificity because
of the various considerations in determining whether a project meets
the statutory criteria as an ATI. Recipients should contact their FTA
regional office with these eligibility questions.
Comment: One commenter requested that FTA add language in Chapter
IV discussing JARC projects to clarify that private for-profit
companies are eligible for third-party contracts to provide JARC
services.
Response: FTA declines to add additional language regarding
program-specific eligibility of third-party private for-profit
companies because Chapter II of the circular articulates generally the
eligibility of contracted service arrangements with such operators.
These arrangements may include, but are not limited to, contracts to
provide JARC services.
Comment: One commenter noted that ``Job Access and Reverse Commute
(JARC) Project'' as a defined term should be deleted because the JARC
formula grant program under 49 U.S.C. 5316 was repealed.
Response: While 49 U.S.C. 5316 was repealed by MAP-21, FTA declines
to remove the definition of JARC in the circular because JARC projects
are still eligible under 49 U.S.C. 5307(a)(1)(C).
Comment: A commenter requested FTA consider removing all specific
dollar amounts under the apportionment section of the circular in
Chapter III. The commenter noted future legislative changes could
modify certain fixed apportionment amounts, creating confusion and
causing the circular to become outdated. The commenter opined, for
example, that if Congress were to amend the $4 million State
apportionment of 5339(a) National Distribution funding, such
legislation would cause this circular to have incorrect information and
cause confusion.
Response: FTA did not remove the dollar amounts for certain fixed
apportionments because the circular cites to the transportation
reauthorization legislation from which the amounts are derived. FTA
asserts that, in some cases when the risk of imminent change in the
apportionment is low, the public and recipients are better served by
references to the specific apportionment amounts in this circular. The
commenter's example is a good example of an appropriate use of citation
to a specific dollar amount because the State set-aside requirement in
49 U.S.C. 5339(a)(5)(A) is a statutory set-aside set forth in a
program-specific section of 49 U.S.C. chapter 53. The statutory
provision is less likely to be amended before reauthorization, so
citation to a specific dollar amount is appropriate.
Comment: One commenter requested that the definition of
``Facilities'' in the circular be revised to reference the intercity
bus portion of intermodal facilities. The commenter noted that FTA's
circular on joint development projects, FTA C 7050.1C, includes
references to intercity bus when referring to joint development.
Response: FTA declines to make a change in response to the comment.
FTA declines to revise the definition of ``Facilities'' in C 9050.1A
because the definition is sufficiently broad to include different types
of facilities. FTA C 7050.1C is specific to joint development projects
and provides more targeted information on intermodal facilities. The
definition of ``Facilities'' in C 9050.1A does not preclude intermodal
facilities, which may include intercity bus, from being included in a
joint development. FTA's joint development circular provides sufficient
applicable guidance regarding this definition from which the formula
grant programs do not deviate.
Comment: One commenter requested that the definition of ``Public
Transportation'' be revised in the circular to clarify that Section
5307 and 5339 funding can be used to improve intercity bus services.
Response: FTA declines to revise the definition of ``Public
Transportation'' as requested. The circular's definition of ``Public
Transportation'' is consistent with the definition at 49 U.S.C.
5302(15). Intercity bus is not public transportation according to this
statutory definition applicable to the entirety of Chapter 53. The
circular references intercity bus services where applicable to Section
5307, 5337, and 5339(a) programs, which specify the narrow instances
for which Section 5307 and 5339 funding can be used for intercity bus
purposes.
Comment: One commenter requested FTA to elaborate on information in
Table IV-3 under ``Crime Prevention and Security Projects'' to clarify
that capital projects that enhance safety and security at intercity bus
facilities and intermodal transportation centers are eligible
activities.
Response: FTA declines to make a change in response to the comment.
FTA declines to revise the list of examples in response to this comment
because the list of examples is to reference specific technology or
items that may enhance safety and security, not the type of facility.
Comment: One commenter requested FTA add ``intermodal facilities
including the intercity bus portions of such facilities'' as an example
of eligible capital projects in Chapter IV where capital projects are
generally discussed.
Response: FTA declines to add this reference as specified; however,
FTA added language regarding reasonable access for private intercity or
charter transportation operators to federally funded public
transportation facilities under 49 U.S.C. 5323(r) in the same section
where capital projects are generally discussed based on other comments.
FTA has also included a reference to joint development improvements,
which include improvements of intercity bus facilities, in Table IV-2,
based on other comments. To the extent that the comment seeks to state
the inclusion of intercity bus in eligible transit programs, these
additional references sufficiently address this comment.
Comment: One commenter requested FTA include additional language
under the ``Joint Development Projects'' section in Chapter IV to
specify that eligible activities also include the improvement of
transportation-related furniture, fixtures, and equipment in intercity
bus terminals, as it is specified in the ``Transit-Oriented
Development'' section.
Response: FTA declines to make a change in response to the comment.
FTA declines to add language to the ``Joint Development Projects''
section in the circular because the section already
[[Page 79355]]
references FTA C 7050.1C, FTA's Joint Development circular, which
provides guidance regarding joint development projects. FTA also notes
that the joint development projects and transit-oriented development
projects are categorically distinct, and any addition of relevant
information would be duplicative of other sections in the circular.
Comment: One commenter requested FTA revise the definition of
``Incidental Use'' in the circular by adding a sentence clarifying that
privately or publicly operated intercity bus service in an FTA-funded
facility is not an incidental use of that facility. The commenter
expressed concern that, without that clarifying sentence, the circular
may create confusion on whether intercity bus services are an
incidental use.
Response: FTA declines to make a change in response to the comment.
FTA declines to revise the definition of ``Incidental Use'' by adding
the suggested sentence. The nature of property incidental use is
discussed in full in FTA's Award Management Requirements circular (C
5010.1), which explains that incidental use is ``the limited non-
transit use of project property that does not conflict with the
original authorized purpose of the project property or the recipient's
ability to maintain satisfactory continuing control.'' By statute, 49
U.S.C. 5302(15), intercity bus service is not public transportation.
Circular 9050.1A addresses intercity bus opportunities where
appropriate while FTA's guidance regarding incidental use and intercity
bus is discussed in other FTA circulars.
Comment: One commenter requested FTA add language referencing the
Surface Transportation Block Grant Program (STBG) under ``Availability
of FHWA `Flexible Funds' for Transit Projects'' and ``Congestion
Mitigation and Air Quality (CMAQ) Improvement Program'' that specifies
flex funds can be used for intercity bus projects.
Response: FTA declines to make a change in response to the comment.
FTA declines to add this language because the flexible funding section
in the circular sufficiently conveys that expenses must be eligible
under both the originating Federal Highway Administration (FHWA)
program and the FTA receiving program.
B. Changes Based on Public Comments
Comments Requesting Clarifications or Specificity
FTA revised language in the circular to address the following
comments, as explained below.
Comment: One commenter requested FTA to add a statement that
acknowledges that circulars may become outdated, and in that event, the
law would apply.
Response: In response to this comment, FTA added the sentence, ``to
the extent this circular is inconsistent with changes in any statute or
regulation, statute or regulation will supersede this circular,'' in
the introductory paragraph of the circular.
Comment: One commenter requested FTA to include language stating
that third-party contracted service agreements may include businesses
other than taxi companies and transportation network companies (TNCs)
that are referred to in Chapter II, under ``Private Operators of Public
Transportation as Contractors.''
Response: FTA agrees that taxi companies and TNCs are not
exclusively the businesses that may participate in these contracted
service agreements. In response to this comment, FTA added ``or other
similar service deployment models'' to the section to account for the
various business models and contracting arrangements recipients may
engage.
Comment: One commenter requested clarification as to how State
recipients must administer transferred funds. More specifically, the
commenter asked whether apportionments transferred from a large UZA to
a rural area would be administered as Section 5311 funds and therefore
would follow the corresponding guidance for those funds.
Response: Funds apportioned under one formula program to another
separate formula program, or to a different tier of the same formula
program, as determined by Census designations, are managed as if they
are part of the receiving funding program (e.g., Section 5307
transferred to Section 5311). While the circular already addresses how
transferred apportionments would retain certain requirements/
limitations associated with the original apportioned program in Chapter
III, additional language was included to specify that transfers of
apportionments retain the same period of availability to obligate funds
to grants as the program of the original apportionment.
Comment: In reference to FTA's definitions of ``Equipment'' and
``Supplies,'' three commenters requested an increase of the $5,000 per-
unit value threshold to $10,000 in order to match the threshold for
micro-purchases for federalized procurement purchases.
Response: Since FTA published the proposed circular, the Office of
Management and Budget (OMB) has updated the ``Uniform Administrative
Requirements, Cost Principles, and Audit Requirements for Federal
Awards'' under 2 CFR part 200, which will be effective October 1, 2024
(89 FR 30046). Among those updates, OMB increased the threshold in the
definitions of ``Equipment'' and ``Supplies'' from $5,000 to $10,000.
FTA has incorporated these new thresholds in the circular. Note that
FTA made this change based on definitional changes in part 200, not
based on the micro-purchase threshold as suggested by the commenters.
Also note that the threshold change is not effective until OMB's update
to part 200 is effective on October 1, 2024.
Comment: One commenter requested that FTA expand the criteria that
a recipient should consider when undertaking fleet expansion in Chapter
IV under ``Requirements Related to Vehicles and Equipment
Eligibility.'' The commenter noted that the language should
additionally account for recipients' evaluation of locally available
resources to identify feasible opportunities for new and expanded
routes and services, as such an evaluation is needed to require
consideration of private mobility providers and to consider provision
of demand-response services in lieu of fixed-route transit.
Response: In response to the comment, FTA added ``and evaluate
available resources'' to refer to other available resources, including
those contemplated by the commenter, because recipients can consider a
wide variety of resources.
Comment: One commenter requested further clarification on
recipients' eligibility to use funds apportioned to UZAs in rural
areas, as well as their eligibility to use funds apportioned to rural
areas in UZAs. More specifically, the commenter communicated support
for the circumstances under which either rural or UZA funds may be used
for services that intersect both a UZA and rural area but noted a
contradiction in the circular's language regarding the inflexibility to
use rural funds for the portion of such a service that is internal to a
UZA when both UZA and rural funds are combined to support the
respective service.
Response: FTA updated the applicable circular language to reflect
and clarify that, when both UZA and rural funds are combined to
subsidize
[[Page 79356]]
such a service (or mobile capital assets used for the service), rural
funds may support the portion of a service that is internal to a UZA.
However, the language re-emphasizes that if a recipient only uses rural
funds for such a service, the service must be designed primarily to
bring rural passengers to and from the UZA with a limited number of
route stops within the UZA. Additionally, FTA modified language to
reflect and clarify that funds apportioned to a UZA that will be used
for immobile capital assets located outside the UZA may support such an
asset in proportion to the extent the asset supports transit service
provided in the respective UZA based on a reasonable cost allocation
methodology.
Comment: One commenter requested clarification on whether transit
agencies' bike share programs are eligible for Section 5307 funding,
which would include activities such as purchasing bicycles and
operating and managing bike share services.
Response: In response to the comment, in Chapter IV, FTA clarified
that eligible projects funded with Section 5307 funds may include
infrastructure expenses to accommodate the presence of bicycle or other
mobility device sharing programs in the vicinity of transit stops or
stations, but the acquisition of bicycles, scooters, segways, or other
similar mobility devices are ineligible expenses. Further, in the
section addressing JARC projects in Chapter IV, FTA removed language
that suggested operating expenses for bicycle sharing programs in the
vicinity of transit stations are eligible. Such expenses are ineligible
because operations associated with those individualized modes of travel
do not qualify as public transportation.
Comment: One commenter requested FTA to consider a different
terminology other than ``Bicycle and Pedestrian Paths'' in Chapter IV.
The commenter recommended FTA use the term ``bicycle and pedestrian
facilities'' in order to highlight the physical nature of the space
rather than give the impression that it refers to an off-road type of
recreation amenity.
Response: FTA updated the section in Chapter IV to which the
comment referred by revising the terminology to ``Bicycle and
Pedestrian Access Improvements.'' Changing the term to ``access
improvements'' rather than ``paths'' or ``facilities'' provides better
alignment to Associated Transit Improvements (ATI), which is defined in
49 U.S.C. 5302(2) and is the focus of the section in the circular. FTA
presumptively interprets bicycle and pedestrian access improvements as
being ``physically or functionally related to transit facilities'' if
they meet the distance requirements specified in the circular.
Comment: Two commenters requested C 9050.1A clarify that minimum
useful life, which is addressed in FTA's circular ``Award Management
Requirements'' (C 5010.1), is different from useful life benchmark
(ULB), which is governed by the Transit Asset Management (TAM)
requirements. One of the commenters requested that C 9050.1A note that
C 5010.1 is the governing circular on minimum useful life.
Response: In response to these comments, FTA references C 5010.1F
in the definition for the term ``minimum useful life'' for more
information on that specific topic. FTA also deleted ``useful life
benchmark'' from the list of defined terms in C 9050.1A to further
reduce confusion since the term is no longer used in the circular.
Comment: One commenter requested that the circular define or
clarify the types of communications that fulfill the ``in writing''
requirement for purposes of requesting and issuing pre-award authority.
Response: These types of communications are already addressed in
Chapter V of the circular, but FTA additionally updated the definition
of ``Pre-award Authority'' to state that it is announced in the annual
Apportionment Notice, Notice of Funding Opportunity, a Letter of No
Prejudice, or other written notification.
Comment: One commenter requested that FTA emphasize the statutory
provision 49 U.S.C. 5323(r), which states that a recipient may not deny
reasonable access for a private intercity or charter transportation
operator to federally funded public transportation facilities. The
commenter said that the cost of maintaining bus terminals in dense
urban areas is becoming too expensive for intercity bus companies, and
the intercity bus companies are facing difficulty finding suitable and
affordable facilities for passenger terminals in dense urban areas. The
commenter further said that allowing the intercity bus companies access
to public transportation facilities would be a convenience to
passengers connecting to public transportation.
Response: In response, FTA included the reference to the statute in
the ``Activities Applicable to Section 5307, 5337, and 5339(a)''
section under Chapter IV. There, FTA states that a recipient's capacity
requirements and the impact on existing public transportation services
must be considered by a recipient in its determination of whether a
proposed access is reasonable. FTA included examples of considerations
in this determination.
Comment: One commenter requested that ``intercity bus service'' be
a defined term in C 9050.1A to ensure clarity on the meaning of
intercity bus service. The commenter further requested that information
about the Intercity Bus program under Section 5311(f) be added to C
9050.1A under ``Relationship to Other Programs'' in Chapter II.
Response: In response to these comments, FTA added information on
the Intercity Bus Program under Section 5311(f) in Chapter II and a
definition of ``intercity bus service'' that is based on the definition
in FTA's Rural Areas Formula Grant Programs Guidance circular, C
9040.1H, for consistency.
Comment: One commenter requested clarification regarding how the
capital cost of contracting table in Chapter IV applies to Section
5339(a) funds.
Response: In response, FTA amended the circular to now include
additional information within the capital cost of contracting table
summarizing the extent to which Section 5337 and 5339(a) funds may
support capital cost of contracting activities.
Comment: One commenter requested FTA to clarify that, in Chapter
III, the ``Lapsing Funds'' section under ``Reallocation or Transfer of
Apportionments'' is referring to Section 5307 funds.
Response: FTA made this revision so that the section is titled
``Lapsing Section 5307 Funds.''
Comment: One commenter requested FTA emphasize that intercity bus
projects are eligible as a capital project if they are part of a joint
development improvement project under 49 U.S.C. 5302(4)(G).
Response: FTA added a new row in Table IV-2 to specify joint
development improvement projects as eligible capital activities in
response to this public comment.
Comment: One commenter requested FTA implement the requirement for
recipients in UZAs with a population of 200,000 or more to expend a
minimum of 0.75 percent of their Section 5307 apportionment on safety-
related projects, referred to as the safety set-aside, only at the
individual recipient level and not for each recipient's grant
application to allow recipients greater grant-making flexibility.
Response: FTA removed the applicability of the requirement to each
grant application to allow recipient flexibility for determining how to
best structure grants to satisfy the minimum 0.75 percent expenditure
on safety-
[[Page 79357]]
related projects. The implementation of the requirement at the
individual recipient level was retained to ensure compliance with the
statute.
Comment: One commenter requested that FTA clarify in Chapter II,
under the section that briefly explains Federal Highway Administration
(FHWA) Flexible Programs, that flex funds can be used for intercity bus
projects. The commenter noted that the language in the circular refers
to flex funds being eligible for ``public transportation projects,''
which does not include intercity bus.
Response: In response to this comment, FTA removed the reference to
``public transportation projects'' and added language from the statute
governing the transfer of highway funds for transit projects, 23 U.S.C.
104(f)(1), to specify that recipients can transfer funds that were
available for transit projects or transportation planning. The
inclusion of the statutory language provides better alignment with the
scope of eligible projects covered by the statute.
Comment: One commenter requested that FTA revise the language in
Chapter V stating that subarea allocations of formula funds are
determined by ``a process based on local needs.'' The commenter asked
that ``local needs'' be replaced with ``regional priorities'' to better
align subarea allocation of formula funds with the performance and
outcome-based planning processes carried out by MPOs.
Response: FTA agrees. 49 U.S.C. 5303 generally establishes regional
priorities as the appropriate geographic scale and standard governing
metropolitan transportation planning decisions while incorporating
local considerations through MPO local official participation. FTA
revised the language to more closely match the statutory language
emphasizing regional priorities as the controlling standard. In the
same sentence, FTA removed language emphasizing the agreement by
designated recipients to subarea allocations, as designated recipients'
participation in the subarea allocation process is already represented
through the metropolitan planning process.
Comment: One commenter requested clarification on whether the
flexibility to include substitute or contingency projects in a grant
application is now being extended to all recipients rather than to just
States and MPOs with multiple subrecipients. The commenter also
requested clarification on this flexibility because the circular
references ``below the line'' in a section of a grant application which
may have referred to a scope code that no longer exists.
Response: In the proposed circular, FTA changed the reference from
``State'' to ``recipient.'' In response to the comment, FTA clarified
that recipients with more than one subrecipient may substitute
contingency subrecipient projects within a grant application. FTA
declines to extend the flexibility to recipients without more than one
subrecipient because they do not manage a program of projects within a
single grant application for more than one other entity. FTA agrees
that the reference to ``below the line'' section of a grant budget is
unnecessary and has removed the reference to the term.
III. Other Changes
In addition to the changes noted above, FTA has made revisions in
this final circular for consistency with changes in statute,
regulation, and other FTA circulars, as well as minor, non-substantive
revisions for clarity. For consistency with statute, FTA has added
language in Chapter II, under ``Designated Recipient and State Roles in
Program Administration,'' to match the language for the criteria for
eligible recipients in 49 U.S.C. 5339(a)(4). FTA also deleted
information about the ``Over the Road Bus Accessibility Program'' in
Chapter IV, which was mentioned under the section discussing the
capital cost of contracting in the proposed circular. FTA removed that
reference from the circular because the funding program expired after
Federal fiscal year 2012.
FTA also updated Public Transportation Safety Program (PTASP)
information in Chapter V for consistency with revisions to the PTASP
regulation (49 CFR part 673) that occurred after publication of the
proposed circular.
In Chapter IV, under ``Workforce Development Activities,'' the
reference to cost principles for Federal awards under 2 CFR 200.403(d)
was updated with a clarifying change from ``may not'' to ``must not''
for consistency with OMB updates to 2 CFR part 200 that become
effective October 1, 2024.
FTA made revisions in this final circular for consistency with
language that was included in proposed FTA C 5010.1F ``Award Management
Requirements'' and C 9040.1H ``Rural Areas Formula Grant Programs
Guidance'' that were published for notice and comment. The name of this
circular, C 9050.1A, has been updated to ``Urbanized Areas Formula
Grant Programs Guidance'' for consistency with the naming structure of
C 9040.1H. FTA also removed the statement that the circular contains
guidance for the preparation of grant applications because that
information is in C 5010.1F. FTA updated or added the following
definitions for consistency with proposed C 5010.1F: the definition of
``Capital Asset,'' which was modified for consistency with 2 CFR 200.1;
the definition of ``Federal Interest,'' which was updated to better
align with FTA and Federal regulations, including in cases for which
fair market value determinations are not readily discernable; the
definition of ``Incidental Use'' to align with C 5010.1F; the
definition of ``National Environmental Policy Act (NEPA),'' which was
updated to clarify the role in FTA-funded projects; the definition of
``Preventive Maintenance,'' which was updated to provide more
specificity; added the definition of ``Project Property'' for
consistency with C 5010.1F; removed the definition of ``Spare Parts''
as it is not a term used in the circular; and the definition of ``State
of Good Repair'' was clarified with non-substantive changes. For
consistency with C 9040.1H, the definition of ``State'' was updated to
include the 49 U.S.C. 5339 reference to the distinction between
``State'' and ``territory,'' and a similar revision was made to note
territories under the section explaining the Grants for Buses and Bus
Facilities Formula Program under 49 U.S.C. 5339(a) in Chapter III.
Along with other non-substantive administrative changes that were
recommended by several commenters, FTA made additional corrections in
the circular for typographical errors, grammatical errors, and
formatting.
Finally, FTA removed outdated language establishing a threshold
level of more than one mile of fixed guideway in order for UZAs to
receive State of Good Repair funds in Chapter III under the ``State of
Good Repair Grants program (Section 5337).'' The outdated requirement
was not based in statute and has not been FTA policy for a significant
amount of time. Removing this threshold requirement from the circular
does not impact any prospective applicants of State of Good Repair
funds and is not a change in existing policy.
Veronica Vanterpool,
Deputy Administrator.
[FR Doc. 2024-22161 Filed 9-26-24; 8:45 am]
BILLING CODE 4910-57-P
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