CFR 49 1999 Title49 Vol5 SubtitleB ChapVI

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49 CFR Ch. V (10–1–99 Edition)§ 596.7

(ii) Report the actual number of vehi-cles covered by each contract.

§ 596.7 Records.Each manufacturer shall maintain

records of the Vehicle IdentificationNumber for each vehicle for which in-formation is reported under § 596.6(b)(2)until December 31, 2004.

§ 596.8 Petition to extend period to filereport.

A manufacturer may petition for ex-tension of time to submit a report

under this Part. A petition will begranted only if the petitioner showsgood cause for the extension and if theextension is consistent with the publicinterest. The petition must be receivednot later than 15 days before expirationof the time stated in § 596.6(a). The fil-ing of a petition does not automati-cally extend the time for filing a re-port. The petition must be submittedto: Administrator, National HighwayTraffic Safety Administration, 400 Sev-enth Street, S.W., Washington, D.C.20590.

VerDate 29<OCT>99 02:05 Dec 04, 1999 Jkt 183200 PO 00000 Frm 00900 Fmt 8010 Sfmt 8010 Y:\SGML\183200T.XXX pfrm02 PsN: 183200T

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CHAPTER VI—FEDERAL TRANSITADMINISTRATION, DEPARTMENT OF

TRANSPORTATION

Part Page601 Organization, functions, and procedures ................. 903604 Charter service ........................................................ 907605 School bus operations ............................................. 915609 Transportation for elderly and handicapped per-

sons ...................................................................... 922613 Planning assistance and standards ......................... 924614 Transportation infrastructure management ........... 925622 Environmental impact and related procedures ....... 925630 Uniform system of accounts and records and re-

porting system ..................................................... 926633 Project management oversight ............................... 931639 Capital leases .......................................................... 934640 Credit assistance for surface transportation

projects ................................................................ 938653 Prevention of prohibited drug use in transit oper-

ations ................................................................... 938654 Prevention of alcohol misuse in transit operations 965659 Rail fixed guideway systems; State safety over-

sight ..................................................................... 993661 Buy America requirements—Surface Transpor-

tation Assistance Act of 1982, as amended ........... 996663 Pre-award and post-delivery audits of rolling stock

purchases .............................................................. 1004665 Bus testing .............................................................. 1008

EDITORIAL NOTE: Nomenclature changes to Chapter VI appear at 57 FR 13657, Apr. 17, 1992.



903

PART 601—ORGANIZATION,FUNCTIONS, AND PROCEDURES

Subpart A—General

Sec.601.1 Purpose.601.2 Organization of the Administration.601.3 General responsibilities.601.4 Responsibilities of the Administrator.

Subpart B—Delegations

601.10 Delegations of authority.

Subpart C—Public Availability ofInformation

601.20 Sources of information.

AUTHORITY: Sec. 9, Department of Trans-portation Act (49 U.S.C. 1657, 1659); Reorga-nization Plan No. 2 of 1968 (82 Stat. 1369); and49 CFR 1.5.

Subpart A—General

SOURCE: 41 FR 56808, Dec. 30, 1976, unlessotherwise noted.

§ 601.1 Purpose.This part describes the organization

or the Federal Transit Administration(‘‘FTA’’) an operating administrationwithin the Department of Transpor-tation. This part also describes thegeneral responsibilities and authorityof the officials directing the various of-fices of which FTA is composed. In ad-dition, this part describes the sourcesand locations of available FTA pro-gram information.

§ 601.2 Organization of the Administra-tion.

(a) The headquarters organization ofFTA is composed of 10 principal officeswhich function under the overall direc-tion of the Federal Transit Adminis-

trator (‘‘the Administrator’’) and Dep-uty Administrator. These offices are:

(1) Office of the Administrator.(2) Office of the Associate Adminis-

trator for Administration.(3) Office of Chief Counsel.(4) Office of Civil Rights.(5) Office of Public Affairs.(6) Office of the Associate Adminis-

trator for Transit Assistance.(7) Office of the Associate Adminis-

trator for Policy and Program Develop-ment.

(8) Office of the Associate Adminis-trator for Transportation Planning.

(9) Office of the Associate Adminis-trator for Transportation Managementand Demonstrations.

(10) Office of the Associate Adminis-trator for Technology Developmentand Deployment.

The Administrator receives staff sup-port from the Executive Secretariatwhich coordinates internal documentdissemination and project assignmentsand ensures policy compliance.

(b) The Office of the Administratorand the Offices of Chief Counsel, PublicAffairs, the Associate Administratorfor Administration, the Associate Ad-ministrator for Transit Assistance, theAssociate Administrator for Policy andProgram Development, and the Asso-ciate Administrator for TransportationPlanning are located in the Depart-ment of Transportation Building, 4007th Street, SW., Washington, DC 20590.The Offices of Civil Rights, the Asso-ciate Administrator for TechnologyDevelopment and Deployment, and theAssociate Administrator for Transpor-tation Management and Demonstra-tions are located in the TranspointBuilding, 2100 2nd Street, SW., Wash-ington, DC 20590.

Region/States Office/address Telephone No.

I—Connecticut, Maine, Massachusetts, New Hamp-shire, Rhode Island, and Vermont.

FTA Representative, c/o Transportation Systems Cen-ter, Kendall Square, Room 277, 55 Broadway,Cambridge, Mass. 02142.

617–494–2055

II—New York, New Jersey, Puerto Rico, and Virgin Is-lands.

FTA Representative, 26 Federal Plaza, Suite 507,New York, N.Y. 10007.

212–264–8162

III—Delaware, District of Columbia, Maryland, Penn-sylvania, Virginia, and West Virginia.

FTA Representative, 434 Walnut St., Suite 1010,Philadelphia, Pa. 19106.

215–597–8098

IV—Alabama, Florida, Georgia, Kentucky, Mississippi,North Carolina, South Carolina, and Tennessee.

FTA Representative, 1720 Peachtree Rd. NW., Suite400, Atlanta, Ga. 30309.

404–526–3948

V—Illinois, Indiana, Minnesota, Michigan, Ohio, andWisconsin.

FTA Representative, 300 South Wacker Dr., Suite1740, Chicago, Ill. 60606.

312–353–0100

VI—Arkansas, Louisiana, New Mexico, Oklahoma, andTexas.

FTA Representative, 819 Taylor St., Suite 3A32, FortWorth, Tex. 76102.

817–334–3787


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49 CFR Ch. VI (10–1–99 Edition)§ 601.3

Region/States Office/address Telephone No.

VII—Iowa, Kansas, Missouri, and Nebraska ................. FTA Representative, 6301 Pork Hill Rd., Room 303,Kansas City, Mo. 64131.

816–926–5053

VIII—Colorado, Montana, North Dakota, South Dakota,Utah, and Wyoming.

FTA Representative, Prudential Plaza, Suite 1822,1050 17th St., Denver, Colo. 80202.

303–837–3242

IX—Arizona, California, Hawaii, Nevada, Guam, andAmerican Samoa.

FTA Representative, Two Embarcadero Center, Suite620, San Francisco, Calif. 94111.

415–556–2884

X—Alaska, Idaho, Oregon, and Washington ................ FTA Representative, Federal Bldg., Suite 3106, 9152d Ave., Seattle, Wash. 98174.

206–442–4210

§ 601.3 General responsibilities.

The general responsibilities of eachof the offices which comprise the head-quarters organization of FTA are:

(a) Office of the Associate Administratorfor Administration. Directed by an Asso-ciate Administrator for Administra-tion, this office provides general ad-ministrative support services for FTA,including financial management, per-sonnel administration, audit, procure-ment, logistical and management in-formation systems.

(b) Office of Chief Counsel. Directed bya Chief Counsel, this office provideslegal advice and services to the Admin-istrator and other FTA officials; co-ordinates with and provides support tothe General Counsel of DOT on mattersinvolving urban mass transportation;and, provides liaison between FTA andthe Department of Labor regarding theadministration of section 13(c) of Fed-eral Mass Transit Act of 1964, asamended (‘‘the Act’’).

(c) Office of Public Affairs. Directed bya Director of Public Affairs, this officeadvises and assists the Administratorin the area of public relations and inthe dissemination to the public and thenews media of information about FTAprograms, projects and activities.

(d) Office of the Associate Administratorfor Policy and Program Development. Di-rected by an Associate Administratorfor Policy and Development, this officeadvises and assists the Administratorin the development and evaluation ofpolicies and plans for implementingthe functions and programs authorizedby the Act; coordinates FTA activitieswith those of other agencies; and man-ages and administers the UniversityResearch Program under section 11 ofthe Act (49 U.S.C. 1607(c)). This officehas three organizational components:The Office of Policy Development; the

Office of Program Evaluation; and theOffice of Policy Research.

(e) Office of the Associate Administratorfor Transit Assistance. Directed by anAssociate Administrator for TransitAssistance, this office reviews andprocesses all applications for urbanmass transportation capital and oper-ating assistance grants and loans undersections 3, 4, 5, 16 and 17 of the Act (49U.S.C. 1602, 1603, 1604, 1612 and 1613); re-views and processes applications forFederal assistance to the WashingtonMetropolitan Area Transit Authority(WMATA) under the TransportationAct of 1972 and the National CapitalArea Transit Act of 1972; directs theevaluation and analysis of proposed an-nual programs and individual programsand individual projects; and approvesand recommends for approval annualprograms and individual projects. Thisoffice has three operating componentswhich direct and coordinate post-ap-proval grant activities: the Office ofGrant Assistance, the Office of Pro-gram Support, and the Office of Pro-gram Analysis.

(f) Office of the Associate Administratorfor Transportation Planning. Directed byan Associate Administrator for Trans-portation Planning, this office assiststhe Administrator in directing, coordi-nating and controlling FTA’s transpor-tation planning assistance and reviewsplanning activities both in relation toFTA-supported State and local actionsand planning policy interaction withinthe Department of Transportation andwith other Federal agencies; and ad-ministers grants to States and localpublic bodies under section 9 of the Act(49 U.S.C. 1607a). This office has two or-ganizational components: the Office ofPlanning Assistance and the Office ofPlanning Methodology and TechnicalSupport.

(g) Office of the Associate Administratorfor Transportation Management and


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Federal Transit Admin., DOT § 601.10

Demonstrations. Directed by an Asso-ciate Administrator for TransportationManagement and Demonstrations, thisoffice assists the Administrator in di-recting, conducting and controlling re-search and demonstration activities,including information dissemination,to foster the development of methodsfor improving transit management andoperations from the perspectives of theoperator and the user; administersgrant and procurement contracts todemonstrate facilities, methods andtechniques under section 6(a) of theAct (49 U.S.C. 1605), and managerialtraining fellowship grants under sec-tion 10 of the Act (49 U.S.C. 1607b). Thisoffice has two organizational compo-nents: the Office of Transit Manage-ment and the Office of Service andMethods Demonstrations.

(h) Office of the Associate Adminis-trator for Technology Development andDeployment. Directed by an AssociateAdministrator for Technology Develop-ment and Deployment, this office is re-sponsible for developing and admin-istering a program of research, devel-opment, testing, evaluation, oper-ational demonstration, product quali-fication, standardization, analysis, andinformation exchange concerning newproducts intended for use in transpor-tation systems assisted by FTA. Theoffice is also responsible for FTA’ssafety and system assurance functionand for advising the Administrator onmatters relating to technology. Thisoffice administers research, develop-ment and demonstration projects undersection 6(a) of the Act (49 U.S.C. 1605).

(i) Office of Civil Rights. Directed by aDirector of Civil Rights, this office ad-vises and assists the Administrator andother FTA officials in implementingcompliance with applicable laws anddirectives pertaining to civil rights andequal employment opportunity, bothwithin FTA and in the conduct ofurban mass transportation projects andprograms.

§ 601.4 Responsibilities of the Adminis-trator.

The Administrator is responsible forthe planning, direction and control ofthe activities of FTA, and has author-ity to approve urban mass transpor-tation grants, loans, and contracts. At

the direction of the Administrator, theDeputy Administrator is authorized toact for and on behalf of the Adminis-trator. In the event of the absence ordisability of the Administrator, the fol-lowing officials shall, in the ordernamed, assume and perform the dutiesof the Administrator:

(a) Deputy Administrator.(a–1) Executive Director.(b) Associate Administrator for Pol-

icy, Budget and Program Development.(c) Associate Administrator for Plan-

ning, Management and Demonstra-tions.

(d) Chief Counsel.(e) Associate Administrator for Tran-

sit Assistance.(f) Associate Administrator for Tech-

nology Development and Deployment.(g) [Reserved](h) Associate Administrator for Ad-

ministration.

(Authority: Sec. 12, Federal Mass TransitAct of 1964, 49 U.S.C. 1608 and 49 CFR 1.51)

[42 FR 59755, Nov. 21, 1977, as amended at 44FR 32705, June 7, 1979; 45 FR 58540, Sept. 4,1980]

Subpart B—Delegations

§ 601.10 Delegations of authority.

(a) Pursuant to authority delegatedto the Administrator by 49 CFR 1.45(b)and 1.51 of the regulations of the Officeof the Secretary of Transportation, thefollowing powers and duties of the Ad-ministrator are redelegated to the offi-cials indicated—

(1) The Associate Administrator forTransit Assistance is delegated author-ity to execute grant contracts, loanagreements, and amendments theretowith respect to approved capital andoperating grants, loans and advancedland acquisition loan projects undersections 3, 4, 5, 16 and 17 of the Act (49U.S.C. 1602, 1603, 1604, 1612 and 1613);under limited circumstances reviewand approve applications for grants andgrant amendments under the FT Actand section 110 of the Federal-AidHighway Act of 1976 and 121(a) of theFederal-Aid Highway Act of 1973, asamended (23 U.S.C. 103 (e) (4) and 142).The Associate Administrator is further


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49 CFR Ch. VI (10–1–99 Edition)§ 601.20

authorized, in connection with the ad-ministration of those projects, to ap-prove requisitions for funds, third-party contracts, and project budgetamendments within previously author-ized limits.

(2) The Associate Administrator forPolicy and Program Development isdelegated authority to execute andamend grant contracts and amend-ments for university research andtraining projects under section 11 ofthe Act (49 U.S.C. 1607c). The AssociateAdministrator is further authorized inconnection with the administration ofthose projects to approve requisitionsfor funds, third-party contracts andproject budget amendments within pre-viously authorized limits.

(3) The Associate Administrator forTechnology Development and Deploy-ment is delegated authority to executeand amend grant contracts and pro-curement requests for approvedprojects under section 6(a) of the Act(49 U.S.C. 1605); The Associate Adminis-trator is further authorized, in connec-tion with the administration of grantcontracts, procurement contracts,interagency reimbursable agreementsand purchase orders, to approve req-uisitions for funds, third-party con-tracts, and project budget amendmentswithin previously authorized limits.

(4) The Associate Administrator forTransportation Planning is delegatedauthority to execute and amend grantcontracts and interagency agreementsfor planning, engineering, architec-tural feasibility and operational im-provement study projects under section9 of the Act (48 U.S.C. 1607a); reviewand approve grant applications andgrant amendments requested pursuantto section 9 of the Act by urbanizedareas of less than 500,000 population.The Associate Administrator is furtherauthorized in connection with the ad-ministration of such contracts to ap-prove requisitions for funds, third-party contracts and project budgetamendments within previously author-ized limits.

(5) The Associate Administrator forTransportation Management and Dem-onstrations is delegated authority toexecute and amend grant contracts forprojects designed to demonstrate fa-cilities, methods and techniques of

transit management and operationsunder section 6(a) of the Act (49 U.S.C.1605) and for approved managerialtraining fellowship projects under sec-tion 10 of the Act (49 U.S.C. 1607b). TheAssociate Administrator is further au-thorized, in connection with the ad-ministration of such projects to ap-prove requisitions for project funds,third-party contracts and project budg-et amendments within previously au-thorized limits.

(b) All authority delegated to an offi-cial listed in paragraph (a) of this sec-tion may be redelegated by that offi-cial to one or more employees underhis jurisdiction.

[41 FR 56809, Dec. 30, 1976]

Subpart C—Public Availability ofInformation

§ 601.20 Sources of information.

(a) The Federal Transit Administra-tion has published a series of internaland external directives which containthe history, organization, policy, pro-cedures, criteria, guidelines, interpre-tations and general regulations formu-lated and adopted by FTA as guidancefor grant recipients, and the generalpublic. All directives are listed in FTANotice N 0000.17 ‘‘Directives Check-list.’’

(b) Single copies of the checklist orany directive may be obtained withoutcharge upon written request either tothe Director, Office of Public Affairs,Federal Transit Administration, Room9314, 400 Seventh Street, SW., Wash-ington, DC 20590, or any Federal Tran-sit Administration regional office list-ed in § 601.2.

(c) The Federal Transit Administra-tion maintains, under the supervisionof the Director of Public Affairs, a doc-ument inspection facility in Room 9314at the headquarters of the Departmentof Transportation Building (NassifBuilding), 400 Seventh Street, SW.,Washington, DC 20590, through whichthe following FTA documents may beobtained:

(1) An index to, and copies of, the in-ternal and external directives of theFederal Transit Administration.


907


(2) Any proposed or final regulationissued by the Federal Transit Adminis-tration, and any background informa-tion for these regulations.

(d) Any person desiring to inspectany of these records, or obtain a copythereof, must submit a request in writ-ing, specifying the record to be in-spected or copied to the Director, Of-fice of Public Affairs, Federal TransitAdministration, Room 9314, 400 Sev-enth Street, SW., Washington, DC20590, accompanied by the appropriatefee for copies prescribed in 49 CFR part7, subpart I.

(Authority: 5 U.S.C. 552; 49 U.S.C. 1657; 49CFR 7.1(d))

[47 FR 55684, Dec. 13, 1982]

PART 604—CHARTER SERVICE

Subpart A—General

Sec.604.1 Purpose.604.3 Applicability.604.5 Definitions.604.7 Charter agreement.604.9 Charter service.604.11 Procedures for determining if there

are any willing and able private charteroperators.

604.13 Reviewing evidence submitted by pri-vate charter operators.

Subpart B—Complaint Process

604.15 Filing a complaint.604.17 Remedies.604.19 Appeals.604.21 Judicial review.APPENDIX A TO PART 604

AUTHORITY: 49 U.S.C. 5323(d); 23 U.S.C.103(e)(4); 142(a); and 142(c); and 49 CFR 1.51.

SOURCE: 52 FR 11933, Apr. 13, 1987, unlessotherwise noted.

Subpart A—General§ 604.1 Purpose.

The purpose of this part is to imple-ment section 3(f) and section 12(c)(6) ofthe FT Act.

§ 604.3 Applicability.This part applies to all applicants

and recipients of Federal financial as-sistance under:

(a) Sections 3 (excluding section16(b)(2)), 5, 9A, 9 or 18 of the FT Act; or

(b) Sections 103(e)(4), 142(a), or 142(c)of Title 23 United States Code whichpermit the use of Federal-Aid Highwayfunds to purchase buses.

§ 604.5 Definitions.(a) All definitions in the FT Act (at

49 U.S.C. 1608) are applicable to thispart, except as may otherwise be pro-vided in this section.

(b) The Acts means the FT Act andthose parts of Title 23 United StatesCode, 23 U.S.C. 103(e)(4), 142(a) and142(c), that provide for assistance topublic bodies for purchasing buses.

(c) Administrator means the Adminis-trator of FTA or his or her designee.

(d) Categories of Revenue Vehiclemeans bus or van.

(e) Charter Service means transpor-tation using buses or vans, or facilitiesfunded under the Acts of a group ofpersons who pursuant to a commonpurpose, under a single contract, at afixed charge (in accordance with thecarrier’s tariff) for the vehicle or serv-ice, have acquired the exclusive use ofthe vehicle or service to travel to-gether under an itinerary either speci-fied in advance or modified after hav-ing left the place of origin. This defini-tion includes the incidental use of FTAfunded equipment for the exclusivetransportation of school students, per-sonnel, and equipment.

(f) Chief Counsel means the ChiefCounsel of FTA.

(g) Days means calendar days in sub-part A and Federal working days insubpart B.

(h) Designated Official means the ap-plicant’s and recipient’s employee au-thorized to file applications on behalfof the applicant or to enter into agree-ments on behalf of the recipient.

(i) Incidental Charter Service meanscharter service which does not: (1)interfere with or detract from the pro-vision of the mass transportation serv-ice for which the equipment or facili-ties were funded under the Acts; or (2)does not shorten the mass transpor-tation life of the equipment or facili-ties.

(j) Interested Party means an indi-vidual, partnership, corporation, asso-ciation, or public or private organiza-tion that has a financial interest whichis adversely affected by the act or acts


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49 CFR Ch. VI (10–1–99 Edition)§ 604.7

of a recipient regarding charter serv-ice.

(k) Non-urbanized area means an areawith a population of less than 50,000people.

(l) Recipient means one that has re-ceived or is receiving Federal financialassistance under the Acts. The term in-cludes subrecipients of a recipient, sub-recipients in FTA’s State administeredprograms, public bodies that receiveassistance that will be passed on to an-other public or quasi-public body, anyoperator for a recipient, whether pub-licly or privately owned, and may in-clude lessees of federally assisted busesand other equipment. For any FTAState administered program, the Stateis the recipient.

(m) State Administered Program meansany FTA grant program in which theState is the recipient of funds, passesthe funds to subrecipients, and admin-isters the program for FTA.

(n) FT Act means the Federal MassTransit Act of 1964, as amended, 49U.S.C. 1601 et seq.

(o) FTA means the Federal TransitAdministration.

(p) Willing and able means having thedesire, having the physical capabilityof providing the categories of revenuevehicles requested, and possessing thelegal authority, including the nec-essary safety certifications, licensesand other legal prerequisites, to pro-vide charter service in the area inwhich it is proposed to be provided.

§ 604.7 Charter agreement.(a) Every applicant for financial as-

sistance under sections 3 (excludingsection 16(b)(2)), 5, 9A, 9 or 18 of the FTAct, or under 23 U.S.C. 103(e)(4), 142(a)or 142(c), must include two copies of acharter bus agreement signed by theapplicant’s designated official witheach grant application submitted toFTA after May 13, 1987. For FTA’sState administered programs, theState is the applicant.

(b) The text of the agreement mustbe as follows:

I, (name), (title), agree that (name of appli-cant) and all recipients through (name of ap-plicant) will provide charter service thatuses equipment or facilities provided underthe Federal Mass Transit Act of 1964, asamended (49 U.S.C. 1601 et seq.) or under 23

U.S.C. 103(e)(4), 142(a) or 142(c) (the Acts)only to the extent that there are no privatecharter service operators willing and able toprovide the charter service that (name of ap-plicant) and all recipients through (name ofapplicant) desire to provide unless one ormore of the exceptions in 49 CFR 604.9 ap-plies.

I further agree that (name of applicant)and all recipients through (name of appli-cant) will comply with the provisions in 49CFR part 604 before they provide any charterservice using equipment or facilities pro-vided under the Acts, that the requirementsof 49 CFR part 604 will apply to any suchcharter service that is provided, and that thedefinitions in 49 CFR part 604 apply to thisagreement.

Applicant

llllllllllllllllllllllll

Name


Title


Date

Federal Transit Administration


Name


Title


Date

(c) If FTA approves the grant appli-cation, the approving official shall signthe agreement when the grant applica-tion is approved. One copy of thesigned agreement will be retained byFTA and the other copy will be re-turned to the recipient, formerly theapplicant.

(d) Once the applicant and FTA enterinto a charter agreement, the applicantmay incorporate that agreement byreference into any subsequent grantapplication instead of submitting anagreement under 49 CFR 604.7(a).

(e) Each State in FTA’s State admin-istered programs must:

(1) Obtain a certification of compli-ance with this part from each of itscurrent subrecipients within 60 days ofMay 13, 1987. The certification shallstate: ‘‘(Name of subrecipient) certifiesthat it shall comply with 49 CFR part


909


604 in the provision of any charter serv-ice provided with FTA funded equip-ment or facilities.’’;

(2) Retain this certification as longas the subrecipient is a subrecipient;and

(3) Assure in each application sub-mitted to FTA after May 13, 1987, thatall subrecipients have submitted thecertification.

(f) If any recipient does not antici-pate submitting a grant application toFTA during Federal fiscal year 1987,the recipient must submit two copiesof the agreement set forth in § 604.7(b)of this part within 60 days of May 13,1987, to the appropriate FTA regionaloffice. FTA will sign the agreement, re-tain one copy of the agreement and re-turn the other to the recipient.

(Approved by the Office of Management andBudget under Control No. 2132–0543)

§ 604.9 Charter service.(a) If a recipient desires to provide

any charter service using FTA equip-ment or facilities the recipient mustfirst determine if there are any privatecharter operators willing and able toprovide the charter service which therecipient desires to provide. To the ex-tent that there is at least one such pri-vate operator, the recipient is prohib-ited from providing charter servicewith FTA funded equipment or facili-ties unless one or more of the excep-tions in § 604.9(b) applies.

(b) Exceptions. (1) A recipient mayprovide any and all charter servicewith FTA funded equipment and facili-ties to the extent that there are nowilling and able private charter opera-tors.

(2) A recipient may enter into a con-tract with a private charter operatorto provide charter equipment to orservice for the private charter operatorif:

(i) The private charter operator is re-quested to provide charter service thatexceeds its capacity; or

(ii) The private charter operator isunable to provide equipment accessibleto elderly and handicapped personsitself.

(3) A recipient in a non-urbanizedarea may petition FTA for an excep-tion to provide charter service directlyto the customer if the charter service

provided by the willing and able pri-vate charter operator or operatorswould create a hardship on the cus-tomer because:

(i) The willing and able private char-ter operator or operators impose min-imum durations pursuant to State reg-ulation and the desired trip length isshorter than the mandatory triplength; or

(ii) The willing and able private oper-ator or operators are located too farfrom the origin of the charter service.

(4) Any recipient may petition theAdministrator for an exception to pro-vide charter service directly to the cus-tomer for special events to the extentthat private charter operators are notcapable of providing the service.

(5) A recipient may execute a con-tract with a government entity or aprivate, non-profit organization ex-empt from taxation under subsection501(c)(1), 501(c)(3), 501(c)(4), or 501(c)(19)of the Internal Revenue Code to pro-vide charter service upon obtaining acertification from that entity or orga-nization which states that:

(i) [the entity/organization] certifies thatit is a government entity or an organizationexempt from taxation under subsection501(c)(1), 501(c)(3), 501(c)(4), or 501(c)(19) of theInternal Revenue Code; there will be a sig-nificant number of handicapped persons aspassengers on this charter trip; the re-quested charter trip is consistent with thefunction and purpose of [the entity/organiza-tion]; and the charter trip will be organizedand operated in compliance with Title VI ofthe Civil Rights Act of 1964, as amended; and,section 19 of the Federal Mass Transit Act of1964, as amended, and 49 CFR part 27; or, 45CFR part 80; or,

(ii) [the entity/organization] certifies thatit is a government entity or an organizationexempt from taxation under subsection501(c)(1), 501(c)(3), 501(c)(4), or 501(c)(19) of theInternal Revenue Code; [the entity/organiza-tion] is a qualified social service agencyunder appendix A of 49 CFR part 604, as a re-cipient of funds, either directly or indirectly,under one or more of the Federal programslisted in appendix A; the requested chartertrip is consistent with the function and pur-pose of [the entity/organization]; and thecharter trip will be organized and operatedin compliance with Title VI of the CivilRights Act of 1964, as amended; and, Section19 of the Federal Mass Transit Act of 1964, asamended, and 49 CFR part 27; or, 45 CFR part80.


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49 CFR Ch. VI (10–1–99 Edition)§ 604.9

(iii) [the entity/organization] certifies thatit is a government entity or organization ex-empt from taxation under subsection501(c)(1), 501(c)(3), 501(c)(4), or 501(c)(19) of theInternal Revenue Code; [the entity/organiza-tion] either receives or is eligible to receivedirectly or indirectly, from a State or localgovernmental body public welfare assistancefunds for purposes whose implementationmay require the transportation of a group oftransit-advantaged or transit-dependent per-sons; following a petition presented by theState in which the entity or organization re-sides, FTA has determined in writing that anFTA recipient may contract directly withthe entity or organization for charter serv-ices; the requested charter trip is consistentwith the functions and purposes of the entityor organization; and the charter trip will beorganized and operated in compliance withTitle VI of the Civil Rights Act of 1964, asamended; and section 19 of the Federal MassTransit Act of 1964, as amended, and 49 CFRpart 27; or, 45 CFR part 80.

(6) A recipient in a non-urbanizedarea may execute a contract with agovernment entity or a private, non-profit organization exempt from tax-ation under subsection 501(c)(1),501(c)(3), 501(c)(4), or 501(c)(19) of the In-ternal Revenue Code to provide charterservice upon obtaining a certificationfrom that entity or organization whichstates that:

[the entity/organization] certifies that it isa government entity or an organization ex-empt from taxation under subsection501(c)(1), 501(c)(3), 501(c)(4), or 501(c)(19) of theInternal Revenue Code; more than 50% of thepassengers on this charter trip will be elder-ly; the requested charter trip is consistentwith the function and purpose of [the entity/organization]; and the charter trip will be or-ganized and operated in compliance withTitle VI of the Civil Rights Act of 1964, asamended; and, Section 19 of the Federal MassTransit Act of 1964, as amended, and 49 CFRpart 27; or, 45 CFR part 80.

(7) A recipient may provide charterservice directly to the customer wherea formal agreement has been executedbetween the recipient and all privatecharter operators it has determined tobe willing and able in accordance withthis part, provided that:

(i) The agreement specifically allowsthe recipient to provide the particulartype of charter trip;

(ii) The recipient has provided forsuch an agreement in its annual publiccharter notice published pursuant tothis part before undertaking any char-

ter service pursuant to this exception;and

(iii) If a recipient has received sev-eral responses to its annual publiccharter notice but ceased its reviewprocess after determining that one pri-vate operator was willing and able, itmust, before concluding a formal char-ter agreement under this section, com-plete the review process to ensure thatall the willing and able private opera-tors are valid parties to the agreement.

(8) During the demonstration perioddescribed in paragraph (b)(8)(iv) of thissection, recipients in the FTA-selectedsites may submit applications to pro-vide charter service to an advisorypanel equally representative of publictransit providers or local business or-ganizations and local private opera-tors, and which has either been createdfor such purpose by the grantee, theState Department of Transportation(State DOT), or metropolitan planningorganization (MPO), or which is part ofthe recipient’s existing private sectorconsultation process.

(i) The advisory panel will forwardthese applications to the State DOT orMPO, which will grant those rec-ommended by unanimous vote of theadvisory panel.

(ii) If the advisory panel does notunanimously endorse an application,the State DOT or MPO will make a de-cision to grant or deny the applicationbased on the following criteria:

(A) Cost evaluation. A recipient mayprovide charter service when it can doso at a significantly lower cost thancan private charter operators. Cost dif-ferences may be considered significantwhen there is approximately a twentypercent difference between the averagecharge for service by private operatorsand the recipient’s fully allocated costof providing the service, or when theadvisory panel determines them to besignificant.

(B) Equipment uniqueness. A recipientmay provide charter service usingequipment that is not available from aprivate source, when such equipment isessential to the purpose of the chartertrip.

(C) Service nature. A recipient mayprovide unscheduled or demand respon-sive service that could not be providedby a private operator without advance


911


notice or at a substantial surcharge tothe customer.

(D) Specific local factors. A recipientmay provide service which responds toa clear need that cannot be met by thelocal private sector, and which is im-portant to the economic or socialhealth and vitality of the local area.

(iii) The State DOT or MPO may notgrant applications to provide servicethat would jeopardize the economic vi-tality of individual private charter op-erators or would seriously detract fromprivate charter business.

(iv) The service described in this sub-section may be provided only duringthe demonstration program to be con-ducted through October 31, 1995, in thefollowing sites:

(A) Monterey, California;(B) Oklahoma City, Oklahoma;(C) St. Louis, Missouri;(D) Yolo County, California;(E) Four sites within the State of

Michigan.(c) The process for requesting and

granting an exception under 49 CFR604.9(b)(3):

(1) The recipient must provide theprivate charter operators that it hasdetermined are willing and able in ac-cordance with this part with a writtennotice explaining why it is seeking anexception and state that they have atleast 30 days to submit written com-ments to the recipient on the request;

(2) The recipient must send a copy ofthe notice, all comments received, andany further information it desires insupport of its request to the ChiefCounsel.

(3) The Chief Counsel shall review thematerials submitted and issue a writ-ten decision denying or granting inwhole or in part the request. In makingthis decision, the Chief Counsel mayseek such additional information asthe Chief Counsel determines is needed.

(4) Any exception that the ChiefCounsel grants under 49 CFR 604.9(b)(3)shall be effective for not longer than 12months from the date that the ChiefCounsel grants it.

(d) The process for requesting andgranting and exception under 49 CFR604.9(b)(4):

(1) The recipient must submit its pe-tition for an exception to the Adminis-trator at least 90 days prior to the day

or days on which it desires to providecharter service.

(2) The petition must describe theevent, explain how it is special, and ex-plain the amount of charter servicewhich private charter operators are notcapable of providing.

(3) The Administrator will review thematerials and issue a written decisiondenying or granting in whole or in partthe request. In making this decision,the Administrator may seek such addi-tional information as the Adminis-trator determines is needed.

(4) Any exception granted by the Ad-ministrator under 49 CFR 604.9(b)(4)shall be effective solely for the eventfor which the recipient requests an ex-ception.

(e) Any charter service that a recipi-ent provides under any of the excep-tions in this part must be incidentalcharter service.

[52 FR 11933, Apr. 13, 1987, as amended at 53FR 53355, Dec. 30, 1988; 58 FR 36899, July 9,1993; 58 FR 52685, Oct. 12, 1993; 59 FR 51134,Oct. 7, 1994]

§ 604.11 Procedures for determining ifthere are any willing and able pri-vate charter operators.

(a) To determine if there is at leastone private charter operator willingand able to provide the charter servicethat the recipient desires to provide,the recipient must complete a publicparticipation process:

(1) At least 60 days before it desiresto begin to provide charter service if itis not doing so on May 13, 1987; or

(2) Not more than 90 days after May13, 1987 if the recipient is providingcharter service on May 13, 1987 and de-sires to continue to provide charterservice.

(b) The public participation processmust at a minimum include:

(1) Placing a notice in a newspaper,or newspapers, of general circulationwithin the proposed geographic charterservice area;

(2) Sending a copy of the notice to allprivate charter service operators in theproposed geographic charter servicearea and to any private charter serviceoperator that requests notice;

(3) Sending a copy of the notice tothe United Bus Owners of America ,


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49 CFR Ch. VI (10–1–99 Edition)§ 604.13

1300 L Street, NW., suite 1050, Wash-ington, DC 20005, and the American BusAssociation, 1100 New York Avenue,NW, Suite 1050, Washington, DC 20005–3934.

(c) The notice must:(1) State the recipient’s name;(2) Describe the charter service that

the recipient proposes to provide lim-ited to the days, times of day, geo-graphic area, and categories of revenuevehicle, but not the capacity or the du-ration of the charter service.

(3) Include a statement providing anyprivate charter operator desiring to beconsidered willing and able with atleast 30 days from the date of the no-tice to submit written evidence toprove that it is willing and able;

(4) State the address to which theevidence must be sent.

(5) Include a statement that the evi-dence necessary for the recipient to de-termine if a private charter operator iswilling and able includes only the fol-lowing:

(i) A statement that the private oper-ator has the desire and the physical ca-pability to actually provide the cat-egories of revenue vehicle specified;and

(ii) A copy of the documents to showthat the private charter operator hasthe requisite legal authority to providethe proposed charter service and thatit meets all necessary safety certifi-cation, licensing and other legal re-quirements to provide the proposedcharter service.

(6) Include a statement that the re-cipient shall review only that evidencesubmitted by the deadline, shall com-plete its review within 30 days of thedeadline, and within 60 days of thedeadline shall inform each private op-erator that submitted evidence whatthe results of the review are.

(7) Include a statement that the re-cipient shall not provide any charterservice using equipment or facilitiesfunded under the Acts to the extentthat there is at least one willing andable private charter operator unlessthe recipient qualifies for one or moreof the exceptions in 49 CFR 604.9(b).

(d) Any recipient that desires to con-tinue to provide charter service usingFTA funded equipment or facilitiesshall follow the procedures in 49 CFR

604.11 (b) and (c) annually during themonth in which it published its firstnewspaper notice to redetermine theextent to which there is at least onewilling and able private charter oper-ator.

(e) Any recipient, including the Statein State administered programs, mayelect to comply with this procedure forall of its subrecipients, or delegate thisresponsibility to the subrecipients, ordelegate this responsibility to onlysome of its subrecipients.


[52 FR 11933, Apr. 13, 1987, as amended at 55FR 34932, Aug. 27, 1990; 59 FR 43778, Aug. 25,1994]

§ 604.13 Reviewing evidence submittedby private charter operators.

(a) The recipient shall review the evi-dence submitted in response to the no-tice given under 49 CFR 604.11 within 30days of the deadline for the submissionof evidence.

(b) Within 60 days of the deadline forthe submission of evidence, the recipi-ent shall notify each private charteroperator that submitted evidence ofthe recipient’s decision.

(c) The recipient must review the evi-dence submitted to determine if theevidence proves that the private char-ter operator has:

(1) The desire and the physical capa-bility to actually provide charter serv-ice using the categories of revenue ve-hicles; and

(2) The required legal authority andthe necessary safety certifications, li-censes and other legal requirements toprovide charter service.

(d) The recipient must determinethat a private charter operator whichmeets the requirements in 49 CFR604.13(c) is willing and able.

(e) A recipient may look behind theevidence submitted by a private char-ter operator only if the recipient hasreasonable cause to believe that someor all of the evidence has been falsified.

(f) A recipient may, within its discre-tion, stop reviewing the evidence sub-mitted by private charter operatorswhen the recipient has determined thatthere is one or more private charter op-erators willing and able to provide all


913


of the charter service that the recipi-ent proposed to provide in its notice. Arecipient may, however, review the evi-dence submitted by all private charteroperators and create a roster of willingand able private charter operators.

(g) The entity that complies with thepublic participation process under 49CFR 604.11(e) shall be responsible forcomplying with the requirements in 49CFR 604.13.


Subpart B—Complaint Process§ 604.15 Filing a complaint.

(a) An interested party (‘‘complain-ant’’) who believes that a recipient isin violation of the requirements of thispart may submit a written complaintto the FTA Regional Administrator.The complainant shall also send a copyof the complaint to the recipient (‘‘re-spondent’’).

(b) If the Regional Administrator de-termines that the complaint is notwithout obvious merit and that itstates grounds on which relief may begranted, the Regional Administratorshall advise the complainant and re-spondent to attempt to conciliate thedispute. The period for informal concil-iation shall last for up to 30 days fromthe date of receipt of the Regional Ad-ministrator’s order unless an extensionis mutually agreed upon by the parties.

(c) If the parties are unable to concil-iate the dispute, either party may sonotify the Regional Administrator inwriting. The Regional Administratorshall send a copy of the complaint tothe respondent and provide it with 30days from the receipt of the notice toprovide written evidence to show thatno violation has occurred. The respond-ent shall provide a copy of this infor-mation to the complainant.

(d) After the Regional Administratorreceives that respondent’s evidence,the Regional Administrator shall in-form the complainant that it has 30days from the receipt of the notice torebut the respondent’s evidence. Thecomplainant shall provide a copy of itsrebuttal to the respondent.

(e) The Regional Administrator shallreview the evidence submitted and pre-pare a written decision. The Regional

Administrator shall attempt to trans-mit the written decision to the partieswithin 30 days of receiving all of theevidence.

(f) If the Regional Administrator de-termines that further investigation isnecessary, including the submission ofadditional information or the holdingof an informal evidentiary hearing, theRegional Administrator shall so informthe parties in writing.

(g) Either party may request an in-formal evidentiary hearing prior to thetransmission of the Regional Adminis-trator’s decision. The Regional Admin-istrator may grant or deny the request.

(h) If an informal evidentiary hearingis held, the date and location shall bearranged by the Regional Adminis-trator in consultation with the parties.Any new evidence introduced by theparties at the informal evidentiaryhearing shall be submitted to the Re-gional Administrator within 10 daysafter the hearing.

(i) The Regional Administrator mayextend the deadlines imposed in thispart for administrative convenience bynotifying all parties in writing of theextensions.

[52 FR 11933, Apr. 13, 1987, as amended at 58FR 52685, Oct. 12, 1993]

§ 604.17 Remedies.

(a) If the Regional Administrator de-termines that a violation of this parthas occurred, the Regional Adminis-trator may order such remedies as theRegional Administrator determines areappropriate.

(b) If the Regional Administrator de-termines that there has been a con-tinuing pattern of violation of thispart, the Regional Administrator maybar the respondent from the receipt offurther financial assistance for masstransportation facilities and equip-ment.


§ 604.19 Appeals.

(a) The losing party may appeal theRegional Administrator’s decision tothe Administrator within 10 days of re-ceipt of the decision. The losing party


914

49 CFR Ch. VI (10–1–99 Edition)§ 604.21

(’’appellant’’) shall include in its ap-peal the basis for the appeal and evi-dence to support the position. The ap-pellant shall send a copy of the appealto the prevailing party (’’appellee’’).

(b) The Administrator will only takeaction on an appeal if the appellantpresents evidence that there are newmatters of fact or points of law thatwere not available or not known duringthe investigation of the complaint.

(c) If the Administrator takes actionon an appeal, the Administrator shallprovide the appellee with 10 days fromthe receipt of the notice to respond tothe evidence contained in the appeal.

(d) The Administrator shall send acopy of the appellee’s response to theappellant and provide it with 10 daysfrom the receipt of the notice to rebutthe appellee’s response.

(e) The Administrator shall endeavorto make a final determination on theappeal within 10 days of the receipt ofthe appellant’s rebuttal.


§ 604.21 Judicial review.

The Regional Administrator’s deci-sion, or the Administrator’s decisionon appeal, shall be final and conclusiveon all parties, but it is subject to judi-cial review pursuant to sections 701–706of Title 5 of the United States Code.


APPENDIX A TO PART 604

The following is a list of Federal assistanceprograms administered under the UnitedStates Department of Health and HumanServices (HHS). The financial assistanceunder each of these HHS programs includesfunding for the transportation needs of theprogram beneficiaries.

Program title Agency

Project Grant and Coopera-tive Agreements for Tuber-culosis Control Programs.

Public Health Service, HHS.

Mental Health Service forCuban Entrants.


Mental Health Planning andDemonstration Projects.


Alcohol, Drug Abuse Treat-ment and RehabilitationBlock Grant.


Family Planning-Services ..... Public Health Service, HHS.Community Health Centers ... Public Health Service, HHS.


Indian Health Services—Health Management Devel-opment Program.


Migrant Health CentersGrants.


Childhood ImmunizationGrants.


Administration for Children,Youth and Families(ACYF)—Head Start.

Office of Human DevelopmentServices, HHS.

ACYF Child Welfare Re-search and DemonstrationProgram.


ACYF Runaway and Home-less Youth.


ACYF Adoption Opportunities Office of Human DevelopmentServices, HHS.

ACYF Child Abuse and Ne-glect (State Grants).


ACYF Child Abuse and Ne-glect Discretionary.


Administration for NativeAmericans (ANA) NativeAmerican Programs—Fi-nancial Assistance Grants.


ANA Research, Demonstra-tion and Evaluation.


ANA Training and TechnicalAssistance.


Administration of Develop-mental Disabilities (ADD)—Basic Support and Advo-cacy Grants.


ADD Special Projects ........... Office of Human DevelopmentServices, HHS.

ADD University Affiliated Fa-cilities.


Administration on Aging(ADA) Special Programsfor the Aging—Grants forSupportive Services andSenior Centers.

Office of Human DevelopmentServices, HHS Title III, PartB—

ADA Title III, Part C, NutritionServices.


ADA Grants to Indian Tribes Office of Human DevelopmentServices, HHS.

ADA Training, Research andDiscretionary Projects andPrograms.


Social Service Block Grant ... Office of Human DevelopmentServices, HHS.

Medical Assistance ProgramTitle XIX.

Health Care Financing Med-icaid; Administration, HHS.

Medicare—SupplementalMedical Insurance.

Health Care Financing Admin-istration, HHS.0

Aid to Families with Depend-ent Children (AFDC)—Maintenance Assistance.

Family Support Administra-tion, HHS.

Work Incentive Program ....... Family Support Administra-tion, HHS.

Community Service BlockGrant (CSBG).


CSBG Discretionary Awards Family Support Administra-tion, HHS.

CSBG DiscretionaryAwards—Community Foodand Nutrition.


Social Security—Disability In-surance.

Social Security Administration,HHS.

Supplemental Security In-come.

Social Security Administration,HHS.

Home Health Services andTraining.



915



Coal Miners Respiratory Im-pairment Treatment Clinicsand Services.


Preventive Health Services—Sexually Transmitted Dis-eases Control Grants.


Health Programs for Refu-gees.


[53 FR 53355, Dec. 30, 1988]

PART 605—SCHOOL BUSOPERATIONS

Subpart A—General

Sec.605.1 Purpose.605.2 Scope.605.3 Definitions.605.4 Public hearing requirement.

Subpart B—School Bus Agreements

605.10 Purpose.605.11 Exemptions.605.12 Use of project equipment.605.13 Tripper service.605.14 Agreement.605.15 Content of agreement.605.16 Notice.605.17 Certification in lieu of notice.605.18 Comments by private school bus oper-

ators.605.19 Approval of school bus operations.

Subpart C—Modification of Prior Agree-ments and Amendment of Applicationfor Assistance

605.20 Modification of prior agreements.605.21 Amendment of applications for assist-

ance.

Subpart D—Complaint Procedures andRemedies

605.30 Filing a complaint.605.31 Notification to the respondent.605.32 Accumulation of evidentiary mate-

rial.605.33 Adjudication.605.34 Remedy where there has been a viola-

tion of the agreement.605.35 Judicial review.

Subpart E—Reporting and Records

605.40 Reports and information.


AUTHORITY: Federal Mass Transit Act of1964, as amended (49 U.S.C. 1601 et seq.); 23U.S.C. 103(e)(4); 23 U.S.C. 142 (a) and (c); and49 CFR 1.51.


Subpart A—General

§ 605.1 Purpose.

(a) The purpose of this part is to pre-scribe policies and procedures to imple-ment section 109(a) of the NationalMass Transportation Assistance Act of1974 (Pub. L. 93–503; November 26, 1974;88 Stat. 1565). Section 109(a) adds a newsection 3(g) to the Federal Mass Tran-sit Act of 1964, as amended (49 U.S.C.1602(g)) and differs from section 164(b)of the Federal-Aid Highway Act of 1973(49 U.S.C. 1602a(b)) in that section 3(g)applies to all grants for the construc-tion or operation of mass transpor-tation facilities and equipment underthe Federal Mass Transit Act, and isnot limited to grants for the purchaseof buses as is section 164(b).

(b) By the terms of section 3(g) noFederal financial assistance may beprovided for the construction or oper-ation of facilities and equipment foruse in providing public mass transpor-tation service to an applicant unlessthe applicant and the Administratorenter into an agreement that the appli-cant will not engage in school bus oper-ations exclusively for the transpor-tation of students and school per-sonnel, in competition with privateschool bus operators.

§ 605.2 Scope.

These regulations apply to all recipi-ents of financial assistance for the con-struction or operation of facilities andequipment for use in providing masstransportation under: (a) The FederalMass Transit Act of 1964, as amended(49 U.S.C. 1601 et seq.); (b) 23 U.S.C. 142(a) and (c); and 23 U.S.C. 103 (e)(4).

§ 605.3 Definitions.

(a) Except as otherwise provided,terms defined in the Federal MassTransit Act of 1964, as amended (49U.S.C. 1604, 1608) are used in this partas so defined.

(b) For purposes of this part—The Acts means the Federal Mass

Transit Act of 1964, as amended (49U.S.C. 1601 et seq.); 23 U.S.C. 142 (a) and(c); and 23 U.S.C. 103(e)(4).


916

49 CFR Ch. VI (10–1–99 Edition)§ 605.4

Administrator means the Federal MassTransit Administrator or his designee.

Adequate transportation means trans-portation for students and school per-sonnel which the Administrator deter-mines conforms to applicable safetylaws; is on time; poses a minimum ofdiscipline problems; is not subject tofluctuating rates; and is operated effi-ciently and in harmony with state edu-cational goals and programs.

Agreement means a contractual agree-ment required under section 3(g) of theFederal Mass Transit Act of 1964, asamended (49 U.S.C. 1602(g)).

Applicant means applicant for assist-ance under the Acts.

Assistance means Federal financialassistance for the purchase of busesand the construction or operation of fa-cilities and equipment for use in pro-viding mass transportation servicesunder the Acts, but does not include re-search, development and demonstra-tion projects funded under the Acts.

Grant contract means the contract be-tween the Government and the granteewhich states the terms and conditionsfor assistance under the Acts.

Government means the Government ofthe United States of America.

Grantee means a recipient of assist-ance under the Acts.

Incidental means the transportationof school students, personnel andequipment in charter bus operationsduring off peak hours which does notinterfere with regularly scheduledservice to the public (as defined in theOpinion of the Comptroller General ofthe United States, B160204, December 7,1966, which is attached as appendix A ofthis part).

Interested party means an individual,partnership, corporation, associationor public or private organization thathas a financial interest which is ad-versely affected by the act or acts of agrantee with respect to school bus op-erations.

Reasonable Rates means rates foundby the Administration to be fair andequitable taking into consideration thelocal conditions which surround thearea where the rate is in question.

School bus operations means transpor-tation by bus exclusively for schoolstudents, personnel and equipment inType I and Type II school vehicles as

defined in Highway Safety ProgramStandard No. 17.

Tripper service means regularly sched-uled mass transportation service whichis open to the public, and which is de-signed or modified to accommodate theneeds of school students and personnel,using various fare collections or sub-sidy systems. Buses used in tripperservice must be clearly marked as opento the public and may not carry des-ignations such as ‘‘school bus’’ or‘‘school special’’. These buses may stoponly at a grantee or operator’s regularservice stop. All routes traveled bytripper buses must be within a grant-ee’s or operator’s regular route serviceas indicated in their published routeschedules.

Urban area means the entire area inwhich a local public body is authorizedby appropriate local, State and Federallaw to provide regularly scheduledmass transportation service. This in-cludes all areas which are either: (a)Within an ‘‘urbanized area’’ as definedand fixed in accordance with 23 CFRpart 470, subpart B; or (b) within an‘‘urban area’’ or other built-up place asdetermined by the Secretary under sec-tion 12(c)(4) of the Federal Mass Tran-sit Act of 1964, as amended (49 U.S.C.1608(c)(4)).

§ 605.4 Public hearing requirement.

Each applicant who engages or wish-es to engage in school bus operationsshall afford an adequate opportunityfor the public to consider such oper-ations at the time the applicant con-ducts public hearings to consider theeconomic, social or environmental ef-fects of its requested Federal financialassistance under section 3(d) of theFederal Mass Transit Act of 1964, asamended (49 U.S.C. 1602(d)).

Subpart B—School BusAgreements

§ 605.10 Purpose.

The purpose of this subpart is to for-mulate procedures for the developmentof an agreement concerning school busoperations.


917


§ 605.11 Exemptions.A grantee or applicant may not en-

gage in school bus operations in com-petition with private school bus opera-tors unless it demonstrates to the sat-isfaction of the Administrator as fol-lows:

(a) That it operates a school systemin its urban area and also operates aseparate and exclusive school bus pro-gram for that school system; or

(b) That private school bus operatorsin the urban area are unable to provideadequate transportation, at a reason-able rate, and in conformance with ap-plicable safety standards; or

(c) That it is a state or local publicbody or agency thereof (or a directpredecessor in interest which has ac-quired the function of so transportingschoolchildren and personnel alongwith facilities to be used therefor) whowas so engaged in school bus oper-ations:

(1) In the case of a grant involvingthe purchase of buses—anytime duringthe 12-month period immediately priorto August 13, 1973.

(2) In the case of a grant for con-struction or operating of facilities andequipment made pursuant to the FTAct as amended (49 U.S.C. 1601 et seq.),anytime during the 12-month periodimmediately prior to November 26,1974.

§ 605.12 Use of project equipment.No grantee or operator of project

equipment shall engage in school busoperations using buses, facilities orequipment funded under the Acts. Agrantee or operator may, however, usesuch buses, facilities and equipment forthe transportation of school students,personnel and equipment in incidentalcharter bus operations. Such use ofproject equipment is subject to part 604of Federal Mass Transit Regulations.

§ 605.13 Tripper service.The prohibition against the use of

buses, facilities and equipment fundedunder the Acts shall not apply to trip-per service.

§ 605.14 Agreement.Except as provided in § 605.11 no as-

sistance shall be provided under the

Acts unless the applicant and the Ad-ministrator shall have first enteredinto a written agreement that the ap-plicant will not engage in school busoperations exclusively for the transpor-tation of students and school personnelin competition with private school busoperators.

§ 605.15 Content of agreement.(a) Every grantee who is not author-

ized by the Administrator under § 605.11of this part to engage in school bus op-erations shall, as a condition of assist-ance, enter into a written agreementrequired by § 605.14 which shall containthe following provisions:

(1) The grantee and any operator ofproject equipment agrees that it willnot engage in school bus operations incompetition with private school busoperators.

(2) The grantee agrees that it will notengage in any practice which con-stitutes a means of avoiding the re-quirements of this agreement, part 605of the Federal Mass Transit Regula-tions, or section 164(b) of the Federal-Aid Highway Act of 1973 (49 U.S.C.1602a(b)).

(b) Every grantee who obtains au-thorization from the Administrator toengage in school bus operations under§ 605.11 of this part shall, as a conditionof assistance, enter into a writtenagreement required by § 605.14 of thispart which contains the following pro-visions:

(1) The grantee agrees that neither itnor any operator of project equipmentwill engage in school bus operations incompetition with private school busoperators except as provided herein.

(2) The grantee, or any operator ofproject equipment, agrees to promptlynotify the Administrator of anychanges in its operations which mightjeopardize the continuation of an ex-emption under § 605.11.

(3) The grantee agrees that it will notengage in any practice which con-stitutes a means of avoiding the re-quirements of this agreement, part 605of the Federal Transit Administrationregulations or section 164(b) of the Fed-eral-Aid Highway Act of 1973 (49 U.S.C.1602a(b)).

(4) The grantee agrees that theproject facilities and equipment shall


918

49 CFR Ch. VI (10–1–99 Edition)§ 605.16

be used for the provision of mass trans-portation services within its urbanarea and that any other use of projectfacilities and equipment will be inci-dental to and shall not interfere withthe use of such facilities and equip-ment in mass transportation service tothe public.

§ 605.16 Notice.(a) Each applicant who engages or

wishes to engage in school bus oper-ations shall include the following in itsapplication:

(1) A statement that it has providedwritten notice to all private school busoperators operating in the urban areaof its application for assistance and itsproposed or existing school bus oper-ations;

(2) A statement that it has publishedin a newspaper of general circulation inits urban area a notice of its applica-tion and its proposed or existing schoolbus operations;

(b) The notice required by paragraphs(a) (1) and (2) of this section shall in-clude the following information:

(1) A description of the area to beserved by the applicant.

(2) An estimation of the number ofeach type of bus which will be em-ployed on the proposed school bus oper-ations, and the number of weekdaysthose buses will be available for schoolbus operations.

(3) A statement of the time, date, andplace of public hearings required undersection 3(d) of the Federal Mass Tran-sit Act of 1964, as amended (49 U.S.C.1602(d)), to be held on the applicationfor assistance.

(4) A statement setting forth reasonsthe applicant feels it should be allowedto engage in school bus operationsunder § 605.11 of this part.

(c) Copies of the application for as-sistance and notice required by para-graph (a) of this shall be available forinspection during the regular businesshours at the office of the applicant.

§ 605.17 Certification in lieu of notice.If there are no private school bus op-

erators operating in the applicant’surban area, the applicant may so cer-tify in its application in lieu of meet-ing the requirements of § 605.16. Thiscertification shall be accompanied by a

statement that the applicant has pub-lished, in a newspaper of general cir-culation in its urban area, a noticestating that it has applied for assist-ance as provided under § 605.16(b) andthat it has certified that there are noprivate school bus operators operatingin its urban area. A copy of the noticeas published shall be included.

§ 605.18 Comments by private schoolbus operators.

Private school bus operators may filewritten comments on an applicant’sproposed or existing school bus oper-ations at the time of the public hearingheld pursuant to section 3(d) of theFederal Mass Transit Act of 1964, asamended (49 U.S.C. 1602(d)). The com-ments of private school bus operatorsmust be submitted by the applicant tothe Administrator together with thetranscript of this public hearing.

§ 605.19 Approval of school bus oper-ations.

(a) The Administrator will considerthe comments filed by private schoolbus operators prior to making any find-ings regarding the applicant’s proposedor existing school bus operations.

(b) After a showing by the applicantthat it has complied with the require-ments of 49 U.S.C. 1602(d) and this sub-part, the Administrator may approveits school bus operations.

(c) If the Administrator finds thatthe applicant has not complied withthe notice requirement of this part orotherwise finds that the applicant’sproposed or existing school bus oper-ations are unacceptable, he will so no-tify the applicant in writing, statingthe reasons for his findings.

(d) Within 20 days after receiving no-tice of adverse findings from the Ad-ministrator, an applicant may filewritten objections to the Administra-tor’s findings or submit a revised pro-posal for its school bus operations. Ifan applicant revises its proposed or ex-isting school bus operations, it shallmail a copy of these revisions alongwith the findings of the administratorto private school bus operators re-quired to be notified under § 605.16.

(e) Private school bus operators whoreceive notice under paragraph (d) ofthis section may within 20 days after


919


receipt of notice file written commentson the proposed revisions with the Ad-ministrator. The Administrator willconsider these comments prior to hisapproval of a proposed revision by theapplicant.

(f) Upon receipt of notice of approvalof its school bus operations, the appli-cant may enter into an agreement withthe Administrator under § 605.14.

Subpart C—Modification of PriorAgreements and Amendmentof Application for Assistance

§ 605.20 Modification of prior agree-ments.

(a) Any grantee which, prior to theadoption of this part, entered into anagreement required by section 164(b) ofthe Federal-Aid Highway Act of 1973 (49U.S.C. 1602(a)(b)), or section 3(g) of theFederal Mass Transit Act of 1964, asamended (49 U.S.C. 1602(g)), who en-gages or wishes to engage in school busoperations in competition with privateschool bus operators, shall seek modi-fication of that agreement in accord-ance with paragraphs (b) through (d) ofthis section.

(b) The grantee shall develop a state-ment setting forth in detail the reasonsit feels it should be allowed to engagein school bus operations under § 605.11of this part. A copy of the statementshould be provided private school busoperators who provide service in thegrantee’s urban area.

(c) The grantee shall allow 30 daysfor persons receiving notice under thissection to respond with written com-ments concerning its proposed or exist-ing school bus operations.

(d) After receiving written com-ments, the grantee shall send his pro-posal with written comments thereonto the Administrator for his reviewunder § 605.17.

§ 605.21 Amendment of applicationsfor assistance.

Pending applications for assistanceupon which public hearings have beenheld pursuant to section 3(d) of theFederal Mass Transit Act of 1964, asamended (49 U.S.C. 1602(d)), and appli-cations which have been approved bythe Administrator but for which nogrant contract has been executed, shall

be amended by the applicant to con-form to this part by following the pro-cedures of § 605.20(b) through (d).

Subpart D—Complaint Proceduresand Remedies

§ 605.30 Filing a complaint.Any interested party may file a com-

plaint with the Administrator alleginga violation or violations of terms of anagreement entered into pursuant to§ 605.14. A complaint must be in writ-ing, must specify in detail the actionclaimed to violate the agreement, andmust be accompanied by evidence suffi-cient to enable the Administrator tomake a preliminary determination asto whether probable cause exists to be-lieve that a violation of the agreementhas taken place.

§ 605.31 Notification to the respondent.On receipt of any complaint under

§ 605.30, or on his own motion if at anytime he shall have reason to believethat a violation may have occurred,the Administrator will provide writtennotification to the grantee concerned(hereinafter called ‘‘the respondent’’)that a violation has probably occurred.The Administrator will inform the re-spondent of the conduct which con-stitutes a probable violation of theagreement.

§ 605.32 Accumulation of evidentiarymaterial.

The Administrator will allow the re-spondent not more than 30 days toshow cause, by submission of evidence,why no violation should be deemed tohave occurred. A like period shall beallowed to the complainant, if any,during which he may submit evidenceto rebut the evidence offered by the re-spondent. The Administrator may un-dertake such further investigation, ashe may deem necessary, including, inhis discretion, the holding of an evi-dentiary hearing or hearings.

§ 605.33 Adjudication.(a) After reviewing the results of

such investigation, including hearingtranscripts, if any, and all evidencesubmitted by the parties, the Adminis-trator will make a written determina-tion as to whether the respondent has


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49 CFR Ch. VI (10–1–99 Edition)§ 605.34

engaged in school bus operations inviolation of the terms of the agree-ment.

(b) If the Administrator determinesthat there has been a violation of theagreement, he will order such remedialmeasures as he may deem appropriate.

(c) The determination by the Admin-istrator will include an analysis andexplanation of his findings.

§ 605.34 Remedy where there has beena violation of the agreement.

If the Administrator determines, pur-suant to this subpart, that there hasbeen a violation of the terms of theagreement, he may bar a grantee or op-erator from the receipt of further fi-nancial assistance for mass transpor-tation facilities and equipment.

§ 605.35 Judicial review.The determination of the Adminis-

trator pursuant to this subpart shall befinal and conclusive on all parties, butshall be subject to judicial review pur-suant to title 5 U.S.C. 701–706.

Subpart E—Reporting and Records§ 605.40 Reports and information.

The Administrator may order anygrantee or operator for the grantee, tofile special or separate reports settingforth information relating to anytransportation service rendered bysuch grantee or operator, in addition toany other reports required by this part.


COMPTROLLER GENERAL OF THEUNITED STATES,

Washington, DC, December 7, 1966.DEAR MR. WILSON: The enclosure with your

letter of October 4, 1966, concerns the legal-ity of providing a grant under the FederalMass Transit Act of 1964 to the City of SanDiego, (City), California. The problem in-volved arises in connection with the defini-tion in subsection 9(d)(5) of the Act, 49 U.S.C.1608(d)(5), excluding charter or sightseeingservice from the term ‘‘mass transpor-tation.’’

It appears from the enclosure with yourletter that the City originally included in itsgrant application a request for funds to pur-chase 8 buses designed for charter service.Subsequently the City amended its applica-tion by deleting a request for a portion ofthe funds attributable to the charter buscoaches. However, in addition to the 8 spe-

cially designed charter buses initially ap-plied for, the City allegedly uses about 40 ofits transit type buses to a substantial extentfor charter-type services. In light of thesefactors surrounding the application by theCity, the enclosure requests our opinion withregard to the legality of grants under theAct as it applies to certain matters (in effectquestions), which are numbered and quotedbelow and answered in the order presented.

Number one:‘‘The grant of funds to a City to purchase

buses and equipment which are intended forsubstantial use in the general charter busbusiness as well as in the Mass Transpor-tation type business.’’

The Federal Mass Transit Act of 1964 doesnot authorize grants to assist in the pur-chase of buses or other equipment for anyservice other than urban mass transpor-tation service. Section 3(a) of the Act limitsthe range of eligible facilities and equipmentto ‘‘* * * buses and other rolling stock, andother real or personal property needed for anefficient and coordinated mass transpor-tation system.’’ In turn, ‘‘mass transpor-tation’’ is defined, in section 9(d)(5) of theAct, specifically to exclude charter service.We are advised by the Department of Hous-ing and Urban Development (HUD) thatunder these provisions, the Department haslimited its grants to the purchase of buses oftypes suitable to meet the needs of the par-ticular kind of urban mass transportationproposed to be furnished by the applicant.’’

HUD further advises that:‘‘One of the basic facts of urban mass

transportation operations is that the needfor rolling stock is far greater during themorning and evening rush hours on week-days than at any other time. For that rea-son, any system which has sufficient rollingstock to meet the weekday rush-hour needsof its customers must have a substantialamount of equipment standing idle at othertimes, as well as drivers and other personnelbeing paid when there is little for them todo. To relieve this inefficient and uneco-nomical situation, quite a number of citieshave offered incidental charter service usingthis idle equipment and personnel during thehours when the same are not needed for reg-ularly scheduled runs. Among the cities sodoing are Cleveland, Pittsburgh, Alameda,Tacoma, Detroit and Dallas.

‘‘Such service contributes to the success ofurban mass transportation operations bybringing in additional revenues and pro-viding full employment to drivers and otheremployees. It may in some cases even reducethe need for Federal capital grant assistance.

‘‘We do not consider that there is any vio-lation of either the letter or the spirit of theAct as a result of such incidental use f busesin charter service. To guard against abuses,every capital facilities grant contract made


921

Federal Transit Admin., DOT Pt. 605, App. A

by this Department contains the followingprovisions:

‘‘ ‘Sec. 4. Use of Project Facilities and Equip-ment—The Public Body agrees that theProject facilities and equipment will be usedfor the provision of mass transportationservice within its urban area for the periodof the useful life of such facilities and equip-ment. . . . The Public Body further agreesthat during the useful life of the Project fa-cilities and equipment it will submit to HUDsuch financial statements and other data asmay be deemed necessary to assure compli-ance with this Section.’ ’’

It is our view that grants may be made toa city under section 3(a) of the Act to pur-chase buses needed by the city for an effi-cient and coordinated mass transportationsystem, even though the city may intend touse such buses for charter use when thebuses are not needed on regularly scheduledruns (i.e. for mass transportation purposes)and would otherwise be idle.

Number two:‘‘Whether a grant of such funds is proper if

charter bus use is incidental to mass publictransportation operations. If so, what is thedefinition of incidental use.’’

We are advised by HUD that under its leg-islative authority, it cannot and does nottake charter service requirements into con-sideration in any way in evaluating theneeds of a local mass transportation systemfor buses or other equipment.

HUD further advises that:‘‘However, as indicated above, we are of

the opinion that any lawful use of projectequipment which does not detract from orinterfere with the urban mass transportationservice for which the equipment is neededwould be deemed an incidental use of suchequipment, and that such use of projectequipment is entirely permissible under ourlegislation. What uses are in fact incidental,under this test, can be determined only on acase-by-case basis.’’

In view of what we stated above in answerto the first question, the first part of ques-tion two is answered in the affirmative.

As to the second part of the question, inSecurity National Insurance Co. v. SecuoyahMarina, 246F.2d 830, ‘‘incident’’ is defined asmeaning ‘‘that which appertains to some-thing else which is primary.’’ Thus, we can-not say HUD’s definition of incidental use asset forth above is unreasonable. Under theAct involved grants may be made to pur-chase buses only if the buses are needed foran efficient and coordinated mass transpor-tation system. It would appear that if busesare purchased in order to meet this need, andare, in fact, used to meet such need, the useof such buses for charter service when notneeded for mass transportation serviceswould, in effect, be an ‘‘incidental use,’’ inso-far as pertinent here. In our opinion such in-

cidental use would not violate the provisionsof the 1964 Act.

Number three:‘‘The grant of funds for mass public trans-

portation purposes to a City which has ex-pressed an intent to engage in the generalcharter bus business when such funds wouldin effect constitute a subsidy to the City ofits intended charter bus operations; i.e. free-ing Municipal funds with which to purchasecharter bus equipment.’’

Section 4(a) of the 1954 Act (49 U.S.C.1603(a)) provides, in part, as follows:

‘‘* * * The Administrator (now Secretary),on the basis of engineering studies, studies ofeconomic feasibility, and data showing thenature and extent of expected utilization ofthe facilities and equipment, shall estimatewhat portion of the cost of a project to be as-sisted under section 1602 of this title cannotbe reasonably financed from revenues—which portion shall hereinafter be called ‘netproject cost’. The Federal grant for such aproject shall not exceed two-thirds of the netproject cost. The remainder of the netproject cost shall be provided, in cash, fromsources other than Federal funds * * *.’’

It is clear from the legislative history ofthe Act involved that the ‘‘revenues’’ to beconsidered are mass transportation systemrevenues including any revenues from inci-dental charter operations. There is nothingin the language of the Act which requiresHUD to take into account the status of thegeneral funds of an applicant city in deter-mining how much capital grant assistance toextend to that city.

It should be noted that in a sense nearlyevery capital grant to a city constitutes apartial subsidy of every activity of the citywhich is supported by tax revenues, since itfrees tax revenues for such other uses.

Number four:‘‘With specific reference to the application

of the City of San Diego for funds under itsapplication to the Department of Housingand Urban Development dated June 2, 1966,whether the Act permits a grant to purchaseequipment wherein 25 percent of such equip-ment will be used either exclusively or sub-stantially in the operation of charter busservices.’’

As to the City of San Diego’s grant appli-cation, we have been advised by HUD as fol-lows:

‘‘As explained above, the Act authorizesassistance only for facilities to be used inmass transportation service. We could not,therefore, assist San Diego in purchasingany equipment to be used ‘exclusively’ in theoperation of charter bus service. Further-more, as also explained above, assisted masstransportation equipment can be used onlyincidentally for such charter services.

‘‘Whether equipment used ‘substantially’in such service qualifies under this rule canbe answered only in the light of the specifics


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49 CFR Ch. VI (10–1–99 Edition)Pt. 609

of the San Diego situation. * * * we have al-ready, during our preliminary review of theCity’s application, disallowed about $150,000of the proposed project cost which was allo-cated to the purchase of eight charter-typebuses.

‘‘The final application of the City of SanDiego is presently under active considerationby this Department. In particular, we haverequested the City to furnish additional in-formation as to the nature and extent of theproposed use, if any, of project facilities andequipment in charter service, so that we canfurther evaluate the application under thecriteria above set forth. We have also re-quested similar information from Mr.Fredrick J. Ruane, who has filed a tax-payers’ suit (Superior Court for San DiegoCounty Civil #297329) against the City, con-testing its authority to engage in charterbus operations.’’

As indicated above, it is clear that underthe Act in question grants may not legallybe made to purchase buses to be used ‘‘exclu-sively’’ in the operation of charter bus serv-ice. However, in view of the purposes of theAct involved it is our opinion that a citywhich has purchased with grant funds busesneeded for an efficient mass transportationsystem, is not precluded by the act fromusing such buses for charter service duringidle or off-peak periods when the buses arenot needed for regularly scheduled runs. Asindicated above, such a use would appear tobe an incidental use.

The fourth question is answered accord-ingly.

As requested, the correspondence enclosedwith your letter is returned herewith.

Sincerely yours,

FRANK H. WEITZEL,Assistant Comptroller General

of the United States.Enclosures:The Honorable Bob Wilson, House of Rep-

resentatives.

MARCH 29, 1976.

INFLATIONARY IMPACT STATEMENT

FINAL REGULATIONS ON SCHOOL BUS

OPERATIONS

I certify that, in accordance with Execu-tive Order 11821, dated November 27, 1974, andDepartmental implementing instructions, anInflationary Impact Statement is not re-quired for final regulations on School BusOperations.

ROBERT E. PATRICELLI,Federal Mass Transit

Administrator.

PART 609—TRANSPORTATION FORELDERLY AND HANDICAPPEDPERSONS

Sec.609.1 Purpose.609.3 Definitions.609.5 Applicability.609.23 Reduced fare.

APPENDIX A TO PART 609—ELDERLY ANDHANDICAPPED

AUTHORITY: 49 U.S.C. 5307(d) and 5308(b); 23U.S.C. 134, 135 and 142; 29 U.S.C. 794; 49 CFR1.51.


§ 609.1 Purpose.

The purpose of this part is to estab-lish formally the requirements of theFederal Transit Administration (FTA)on transportation for elderly andhandicapped persons.


As used herein:Elderly and handicapped persons

means those individuals who, by reasonof illness, injury, age, congenital mal-function, or other permanent or tem-porary incapacity or disability, includ-ing those who are nonambulatorywheelchair-bound and those with semi-ambulatory capabilities, are unablewithout special facilities or specialplanning or design to utilize masstransportation facilities and servicesas effectively as persons who are not soaffected.

§ 609.5 Applicability.

This part, which applies to projectsapproved by the Federal Transit Ad-ministrator on or after May 31, 1976,applies to all planning, capital, and op-erating assistance projects receivingFederal financial assistance under sec-tions 5307 or 5308 of the Federal transitlaws (49 U.S.C. Chapter 53), and non-highway public mass transportationprojects receiving Federal financial as-sistance under: (1) Subsection (a) or (c)of section 142 of title 23, United StatesCode; and (2) paragraph (4) of sub-section (e) of section 103, title 23,United States Code. However, undercertain circumstances evident in


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§§ 609.13 through 609.21, the latter sec-tions apply to fixed facilities and vehi-cles included in projects approved be-fore May 31, 1976. Sections in this parton capital assistance applications,fixed facilities, and vehicles apply ex-pressly to capital assistance projectsreceiving Federal financial assistanceunder any of the above statutes.

[41 FR 18239, Apr. 30, 1976, as amended at 61FR 19562, May 2, 1996]

§ 609.23 Reduced fare.Applicants for financial assistance

under section 5307 of the Federal tran-sit laws (49 U.S.C. Chapter 53), must, asa condition to receiving such assist-ance, give satisfactory assurances, insuch manner and form as may be re-quired by the Federal Transit Adminis-trator and in accordance with suchterms and conditions as the FederalTransit Administrator may prescribe,that the rates charged elderly andhandicapped persons during non-peakhours for transportation utilizing orinvolving the facilities and equipmentof the project financed with assistanceunder this section will not exceed one-half of the rates generally applicable toother persons at peak hours, whetherthe operation of such facilities andequipment is by the applicant or is byanother entity under lease or other-wise.

[41 FR 18239, Apr. 30, 1976, as amended at 61FR 19562, May 2, 1996]

APPENDIX A TO PART 609—ELDERLY ANDHANDICAPPED

The definitions of the term elderly andhandicapped as applied under FTA’s elderlyand handicapped half-fare program (49 CFRpart 609) shall apply to this rule. This per-mits a broader class of handicapped personsto take advantage of the exception thanwould be permitted under the more restric-tive definition applied to the non-discrimina-tion provisions of the Department’s section504 program (49 CFR 27.5), which includesonly handicapped persons otherwise unableto use the recipient’s bus service for the gen-eral public.

Accordingly, for the purposes of this part,the definition of elderly persons may be deter-mined by the FTA recipient but must, at aminimum, include all persons 65 years of ageor over.

Similarly, the definition of handicappedpersons is derived from the existing regula-

tions at 49 CFR 609.3 which provide thatHandicapped persons means those individualswho, by reason of illness, injury, age, con-genital malfunction, or other permanent ortemporary incapacity or disability, includ-ing those who are nonambulatory wheel-chair-bound and those with semi-ambulatorycapabilities, are unable without special fa-cilities or special planning or design to uti-lize mass transportation facilities and serv-ices as effectively as persons who are not soaffected.

To assist in understanding how the defini-tions might be applied to administration ofthe charter rule, the following questions andanswers previously published by FTA for thehalf-fare program in FTA C 9060.1, April 20,1978, are reproduced:

1. Question: Can the definition of elderly orhandicapped be restricted on the basis ofresidency, citizenship, income, employmentstatus, or the ability to operate an auto-mobile?

Answer: No. Section 5(m) is applicable toelderly and handicapped persons. It is FTA’spolicy that such categorical exceptions arenot permitted under the Act.

2. Question: Can the eligibility of temporaryhandicaps be restricted on the basis of theirduration?

Answer: Handicaps of less than 90 days du-ration may be excluded. Handicaps of morethan 90 days duration must be included.

3. Question: Can the definition of handicapbe limited in any way?

Answer: FTA has allowed applicants to ex-clude some conditions which appear to meetthe functional definition of handicap pro-vided in section 5302(a)(5) of the Federaltransit laws (49 U.S.C. Chapter 53). These in-clude pregnancy, obesity, drug or alcohol ad-diction, and certain conditions which do notfall under the statutory definition (e.g., lossof a finger, some chronic heart or lung condi-tions, controlled epilepsy, etc.). Individualsmay also be excluded whose handicap in-volves a contagious disease or poses a dangerto the individual or other passengers. Otherexceptions should be reviewed on a case-by-case basis.

4. Question: Is blindness considered a handi-cap under Section 5(m)?

Answer: Yes.5. Question: Is deafness considered a handi-

cap under section 5(m)?Answer: As a rule, no, because deafness, es-

pecially on buses, is not considered a dis-ability which requires special planning, fa-cilities, or design. However, deafness is rec-ognized as a handicap in the Department ofTransportation’s ADA regulation, and appli-cants for Section 5 assistance are encouragedto include the deaf as eligible for off-peakhalf-fares.

6. Question: Is mental illness considered ahandicap under section 5(m)?


924


Answer: As a rule, no, because of the dif-ficulty in establishing criteria or guidelinesfor defining eligibility. However, FTA en-courages applicants to provide the broadestpossible coverage in defining eligible handi-caps, including mental illness.

7. Question: Can operators delegate the re-sponsibility for certifying individuals as eli-gible to other agencies?

Answer: Yes, provided that such agenciesadminister the certification of individuals inan acceptable manner and are reasonably ac-cessible to the elderly and handicapped.Many operators currently make extensiveuse of social service agencies (both publicand private) to identify and certify eligibleindividuals.

8. Question: Can operators require elderlyand handicapped individuals to be recognizedby any existing agency (e.g., require thathandicapped persons be receiving SocialService or Veterans’ Administration bene-fits)?

Answer: Recognition by such agencies iscommonly used to certify eligible individ-uals. However, such recognition should notbe a mandatory prerequisite for eligibility.For example, many persons with eligibletemporary handicaps may not be recognizedas handicapped by social service agencies.

9. Question: Can the operator require thatelderly and handicapped persons come to acentral office to register for an off-peak half-fare program?

Answer: FTA strongly encourages opera-tors to develop procedures which maximizethe availability of off-peak half-fares to eli-gible individuals. Requiring individuals totravel to a single office which may be incon-veniently located is not consistent with thispolicy, although it is not strictly prohibited.FTA reserves the right to review such localrequirements on a case-by-case basis.

10. Question: Must ID cards issued by oneoperator be transferable to another?

Answer: No. However, FTA encourages con-sistency among off-peak procedures and themaximizing of availability to eligible indi-viduals, especially among operators within asingle urban area. Nevertheless, each oper-ator is permitted to require its own certifi-cation of individuals using its service.

11. Question: Can an operator require an el-derly or handicapped person to submit to aprocedure certifying their eligibility beforethey can receive half-fare? For example, ifan operator requires eligible individuals tohave a special ID card, can the half-fare bedenied to an individual who can otherwisegive proof of age, etc, but does not have anID card?

Answer: Yes, although FTA does not en-dorse this practice.

[53 FR 53356, Dec. 30, 1988. Redesignated andamended at 61 FR 19562, May 2, 1996]

PART 613—PLANNING ASSISTANCEAND STANDARDS

Subpart A—Metropolitan TransportationPlanning and Programming

Sec.613.100 Metropolitan transportation plan-

ning and programming.

Subpart B—Statewide TransportationPlanning and Programming

613.200 Statewide transportation planningand programming.

Subpart C—Coordination of Federal andFederally Assisted Programs and Projects

613.300 Coordination of Federal and feder-ally assisted programs and projects.

AUTHORITY: 23 U.S.C. 134, 135, and 217(g); 42U.S.C. 3334, 4233, 4332, 7410 et seq; 49 U.S.C.5303–5306, 5323(k); and 49 CFR 1.48(b), 1.51(f)and 21.7(a).

Subpart A—Metropolitan Transpor-tation Planning and Program-ming

§ 613.100 Metropolitan transportationplanning and programming.

The regulations in 23 CFR part 450,subpart C, shall be followed in com-plying with the requirements of thissubpart. 23 CFR part 450, subpart C, re-quires a metropolitan planning organi-zation (MPO) be designated for each ur-banized area and that the metropolitanarea have a continuing, cooperative,and comprehensive transportationplanning process that results in plansand programs that consider all trans-portation modes. These plans and pro-grams shall lead to the development ofan integrated, intermodal metropolitantransportation system that facilitatesthe efficient, economic movement ofpeople and goods.

[58 FR 58079, Oct. 28, 1993]

Subpart B—Statewide Transpor-tation Planning and Program-ming

§ 613.200 Statewide transportationplanning and programming.

The regulations in 23 CFR part 450,subpart B, should be followed in com-plying with the requirements of this


925


subpart. 23 CFR part 450, subpart B, re-quires each State to carry out an inter-modal statewide transportation plan-ning process, including the develop-ment of a statewide transportationplan and transportation improvementprogram that facilitates the efficient,economic movement of people andgoods in all areas of the State, includ-ing those areas subject to the require-ments of 23 U.S.C. 135 and sections 3, 5,8, 9 and 26 of the Federal Transit Act(49 U.S.C. app. 1602, 1604, 1607, 1607a,and 1622).

[58 FR 58079, Oct. 28, 1993]

Subpart C—Coordination of Fed-eral and Federally AssistedPrograms and Projects

§ 613.300 Coordination of Federal andfederally assisted programs andprojects.

The coordination of Federal and fed-erally assisted programs and projectsimplementing OMB revised CircularNo. A–95, which are set forth in 23 CFRpart 420, subpart C, are incorporatedinto this subpart.

[41 FR 33443, Aug. 9, 1976]

PART 614—TRANSPORTATIONINFRASTRUCTURE MANAGEMENT

AUTHORITY: 23 U.S.C. 303; 49 U.S.C. 5303–5305; and 49 CFR 1.48 and 1.51.


§ 614.101 Cross-reference to manage-ment systems.

The regulations in 23 CFR Part 500,subparts A and B shall be followed incomplying with the requirements ofthis part. Part 500, subparts A and Bimplement 23 U.S.C. 303 for State de-velopment, establishment, and imple-mentation of systems for managingtraffic congestion (CMS), public trans-portation facilities and equipment(PTMS), intermodal transportation fa-cilities and systems (IMS), and trafficmonitoring for highways and publictransportation facilities and equip-ment.

PART 622—ENVIRONMENTAL IM-PACT AND RELATED PROCE-DURES

Subpart A—Environmental Procedures

Sec.622.101 Cross-reference to procedures.

Subpart B [Reserved]

Subpart C—Requirements for EnergyAssessments

622.301 Buildings.

Subpart A—EnvironmentalProcedures

AUTHORITY: 42 U.S.C. 4321 et seq.; 49 U.S.C.1601 et seq.; 49 CFR 1.51.

§ 622.101 Cross-reference to proce-dures.

The procedures for complying withthe National Environmental Policy Actof 1969, as amended (42 U.S.C. 4321 etseq.), and related statutes, regulations,and orders are set forth in part 771 oftitle 23 of the Code of Federal Regula-tions.

[52 FR 32660, Aug. 28, 1987]

Subpart B [Reserved]

Subpart C—Requirements forEnergy Assessments

AUTHORITY: Sec. 403(b), Pub. L. 95–620; E.O.12185.

§ 622.301 Buildings.

(a) FTA assistance for the construc-tion, reconstruction, or modification ofbuildings for which applications aresubmitted to FTA after October 1, 1980,will be approved only after the comple-tion of an energy assessment. An en-ergy assessment shall consist of ananalysis of the total energy require-ments of a building, within the scope ofthe proposed construction activity andat a level of detail appropriate to thatscope, which considers:

(1) Overall design of the facility ormodification, and alternative designs;

(2) Materials and techniques used inconstruction or rehabilitation;


926


(3) Special or innovative conserva-tion features that may be used;

(4) Fuel requirements for heating,cooling, and operations essential to thefunction of the structure, projectedover the life of the facility and includ-ing projected costs of this fuel; and

(5) Kind of energy to be used, includ-ing:

(i) Consideration of opportunities forusing fuels other than petroleum andnatural gas, and

(ii) Consideration of using alter-native, renewable energy sources.

(b) Compliance with the require-ments of paragraph (a) of this sectionshall be documented as part of the En-vironmental Assessment or Environ-mental Impact Statement for projectswhich are subject to a requirement forone. Projects for which there is no en-vironmental assessment or EIS shalldocument compliance by submission ofappropriate material with the applica-tion for FTA assistance for actual con-struction.

(c) The cost of undertaking and docu-menting an energy assessment may beeligible for FTA participation if the re-quirements of Federal ManagementCircular 74–4 (A–87) are met.

(d) This requirement shall not applyto projects for which the final projectapplication or environmental assess-ment have been submitted to FTAprior to October 1, 1980.

[45 FR 58038, Aug. 29, 1980]

PART 630—UNIFORM SYSTEM OFACCOUNTS AND RECORDS ANDREPORTING SYSTEM

Sec.630.1 Purpose.630.2 Scope.630.3 Definitions.630.4 Requirements.630.5 Failure to report data.630.6 Late and incomplete reports.630.7 Failure to respond to questions.630.8 Questionable data items.630.9 Notice of FTA action.630.10 Waiver of reporting requirements.630.11 Data adjustments.630.12 Display of OMB control numbers.

APPENDIX TO PART 630—OVERVIEW AND EX-PLANATION OF THE URBAN MASS TRANS-PORTATION INDUSTRY UNIFORM SYSTEM OFACCOUNTS AND RECORDS AND REPORTINGSYSTEM

AUTHORITY: Sec. 111, Pub. L. 93–503, 88 Stat.1573 (49 U.S.C. 1611); Secs. 303(a) and 304(c),Public Law 97–424, 96 Stat. 2141 (49 U.S.C.1607); and 49 CFR 1.51.

SOURCE: 58 FR 4888, Jan. 15, 1993, unlessotherwise noted.

§ 630.1 Purpose.

The purpose of this part is to pre-scribe requirements and proceduresnecessary for compliance with the Uni-form System of Accounts and Recordsand Reporting System mandated bysection 15 of the Federal Transit Act,as amended, 49 U.S.C. 1611, and to setforth the procedures for addressing areporting agency’s failure to complywith these requirements.

§ 630.2 Scope.

This part applies to all applicantsand beneficiaries of Federal financialassistance under section 9 of the Fed-eral Transit Act, as amended (49 U.S.C.1607a).


(a) Except as otherwise provided,terms defined in the Federal TransitAct, as amended (49 U.S.C. 1601 et seq.),are used in this part as so defined.

(b) Terms defined in the current edi-tions of the Urban Mass Transpor-tation Industry Uniform System of Ac-counts and Records and the annual Re-porting Manual, are used in this partas so defined.

(c) For purposes of this part:Administrator means the Federal

Transit Administrator or the Adminis-trator’s designee.

Applicant means an applicant for as-sistance under section 9 of the FederalTransit Act, as amended.

Assistance means Federal financialassistance for the acquisition, con-struction, or operation of public masstransportation services.

Beneficiary means any organizationoperating and delivering urban transitservices that directly receives benefitsfrom assistance under section 9 of theFederal Transit Act, as amended.

Chief Executive Officer (CEO) meansthe principal executive in charge ofand responsible for the reporting agen-cy.


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Current edition of the Urban MassTransportation Industry Uniform Sys-tem of Accounts and Records and theReporting Manual means the most re-cently issued edition of the referencedocuments.

Days mean calendar days.The Federal Transit Act means the

Federal Transit Act, as amended (49U.S.C. 1601a et seq.)

Mass Transportation Agency or transitagency means an agency authorized totransport people by bus, rail, or otherconveyance, either publicly or pri-vately owned, and which provides tothe public general or special service(but not including school, charter, orsightseeing service) on a regular andcontinuing, scheduled or unscheduled,basis. Transit agencies are classifiedaccording to the mode of transit serv-ice operated. A multi-mode transitagency operates two or more modes,which are defined in the current edi-tions of the Urban Mass Transpor-tation Industry Uniform System of Ac-counts and Records and the ReportingManual.

Reference Document(s) means the cur-rent editions of the Urban Mass Trans-portation Industry Uniform System ofAccounts and Records, and the Report-ing Manual. These documents are sub-ject to periodic revision. Beneficiariesand applicants are responsible for usingthe current editions of the referencedocuments.

Reporting agency means the agencyrequired to submit a report under sec-tion 15.

§ 630.4 Requirements.(a) Uniform system of accounts and

records. Each applicant for and directbeneficiary of Federal financial assist-ance under section 9 of the FederalTransit Act must comply with the ap-plicable requirements of the section 15Uniform System of Accounts andRecords, as set forth in the current edi-tion of the ‘‘Urban Mass Transpor-tation Industry Uniform System of Ac-counts and Records’’; the ‘‘ReportingManual’’; Circulars; and other ref-erence documentation.

(b) Reporting system. Each applicantfor, and direct beneficiary of, Federalfinancial assistance under section 9 ofthe Federal Transit Act must comply

with the applicable requirements of thesection 15 Reporting System, as setforth in the current edition of the‘‘Urban Mass Transportation IndustryUniform System of Accounts andRecords’’; the ‘‘Reporting Manual’’;Circulars; and other reference docu-mentation.

(c) Copies. Copies of these referenceddocuments are available from the Fed-eral Transit Administration, Office ofGrants Management, Audit Review andAnalysis Division, P.O. Box 61126,Washington, DC 20039–1126. These ref-erence documents are subject to peri-odic revision. Revisions of these docu-ments will be mailed to all persons re-quired to comply and a notice of anysignificant changes in these referencedocuments will be published in FED-ERAL REGISTER.

§ 630.5 Failure to report data.

Failure to report data in accordancewith this part will result in the report-ing agency being ineligible to receiveany section 9 grants directly or indi-rectly (e.g., a public agency receivingThe FTA funds through another publicagency rather than directly from theFTA). This ineligibility applies to allreporting agencies without regard tothe size of the urbanized area served bythe reporting agency.

§ 630.6 Late and incomplete reports.

(a) Late reports. Each reporting agen-cy shall ensure that its report is re-ceived by the FTA on due dates pre-scribed in the annual Reporting Man-ual. A reporting agency may request anextension of 30 days after the due date.The FTA will treat a failure to submitthe required report by the due date asfailure to report data under § 630.05.

(b) Incomplete reports. The FTA willtreat any report or submission whichdoes not contain all the necessary re-porting forms, data, or certificationsfor services directly operated by the re-porting agency in substantial conform-ance with the definitions, procedures,and format requirements set out in thesection 15 Uniform System of Accountsand Records and Reporting System asfailure to report data under § 630.05.The FTA will treat the submission of areport with incomplete data or missing


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forms for services provided under con-tract to the reporting agency by pri-vate or public carriers as failure to re-port data under § 630.05 provided thatthe reporting agency has exhausted allpossibilities for obtaining this informa-tion.

§ 630.7 Failure to respond to questions.

The FTA will review each section 15report to verify the reasonableness ofthe data submitted. If any of the datado not appear reasonable, the FTA willnotify the reporting agency of this factand request written justification todocument the accuracy of the ques-tioned data. Failure of a reportingagency to make a good faith writtenresponse to this request will be treatedunder § 630.5 as failure to report data.

§ 630.8 Questionable data items.

The FTA may enter a zero or adjustany questionable data item(s) in a re-porting agency’s section 15 report usedin computing the section 9 apportion-ment. These adjustments may be madeif any data appear inaccurate or havenot been collected and reported in ac-cordance with the FTA’s definitionsand/or confidence and precision levels,or if there is lack of adequate docu-mentation or a reliable recordkeepingsystem.

§ 630.9 Notice of FTA action.

Before taking final action under§ 630.5, § 630.6, § 630.7 or § 630.8, the FTAwill transmit a written request to thereporting agencies to provide the nec-essary information within a specifiedreasonable period of time. The FTAwill advise the reporting agency of itsfinal decision in this regard.

§ 630.10 Waiver of reporting require-ments.

Waivers of one or more sections ofthe reporting requirements may begranted at the discretion of the Admin-istrator on a written showing that theparty seeking the waiver cannot fur-nish the required data without unrea-sonable expense and inconvenience.Each waiver will be for a specified pe-riod of time.

§ 630.11 Data adjustments.Errors in the data used in making

the apportionment may be discoveredafter any particular year’s apportion-ment is completed. If so, the FTA shallmake adjustments to correct these er-rors in a subsequent year’s apportion-ment to the extent feasible.

§ 630.12 Display of OMB control num-bers.

All of the information collection re-quests in this part have been approvedby the Office of Management and Budg-et under control number 2132–0008.

APPENDIX A TO PART 630—OVERVIEWAND EXPLANATION OF THE URBANMASS TRANSPORTATION INDUSTRYUNIFORM SYSTEM OF ACCOUNTS ANDRECORDS AND REPORTING SYSTEM

A. Introduction

Section 15 of the Federal Transit Act, asamended, provides for establishment of twoinformation-gathering analytic systems: AUniform System of Accounts and Records,and a Reporting System for the collectionand dissemination of public mass transpor-tation financial and operating data by uni-form categories. The purpose of these twoSystems is to provide information on whichto base public transportation planning andpublic sector investment decisions. The sec-tion 15 system is administered by the Fed-eral Transit Administration (FTA).

The Uniform System of Accounts and Recordsconsists of:

• Various categories of accounts andrecords for classifying financial and oper-ating data;

• Precise definitions as to what data ele-ments are to be included in these categories;and

• Definitions of practices for systematiccolloection and recording of such informa-tion.

• While a specific accounting system isrecommended for this recordkeeping, it ispossible to make a translation from most ex-isting accounting systems to comply withthe Section 15 Reporting System, which con-sists of forms and procedures:

• For transmitting data from transit agen-cies to the FTA;

• For editing and storing the data; and• For the FTA to report information to

various groups.Under the terms of section 15 of the Fed-

eral Transit Act, as amended, all applicantsfor, and beneficiaries of, Federal assistanceunder section 9 of the Act (under the formulagrant programs) must comply with the Re-porting System and the Uniform System of


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Accounts and Records in order to be eligiblefor Federal grants. It should be noted thatseparate and complete Section 15 reportsmust be submitted by or for each purchasedtransportation service provider that operates100 or more revenue vehicles for the pur-chased service during the maximum serviceperiod.

B. Purpose of This Appendix

This appendix presents a general introduc-tion to the structure and operation of thetwo Systems. It is not a detailed set of in-structions for completion of a Section 15 re-port or establishment of a System of Ac-counts and Records. Persons in need of moreinformation should refer to the current edi-tions of the Urban Mass Transportation In-dustry Uniform System of Accounts andRecords and the Reporting Manual, availablefrom: Federal Transit Administration, AuditReview and Analysis Division, Office of Cap-ital and Formula Assistance, P.O. Box 61126,Washington, DC 20039–1126.

The FTA periodically updates these ref-erence documents or supplements them torevise or clarify section 15 definitions, re-porting forms and instructions. Section 630.4makes clear that reporting agencies mustuse the most recent edition of reference doc-uments and reporting forms to comply withthe section 15 requirements. The FTA there-fore encourages local officials to check withthe FTA before completing a Section 15 re-port to avoid unnecessary efforts and delays.

C. Special (Reduced) Reporting Requirements

Certain information collection and record-ing requirements were tailored to accommo-date the unique characteristics of certaintransportation modes. Reduced requirementswere permitted during limited time periodsto ease transition to complete reporting forthese modes. Reduced reporting require-ments for commuter rail systems and van-pool services ended in the 1987 report year. Inaddition, the reduced reporting requirementsfor private subscription and private noncon-tract conventional bus service is eliminatedfor the 1992 report year.

D. A Single Required Level of Section 15Reporting and Recordkeeping

The FTA has developed a single requiredreporting format for use by all transit agen-cies. The single required level accommodatesvariations in size, local laws, and modes oftransport.

The Uniform Systems also contain a lim-ited amount of additional more detailed fi-nancial and operational data that can besubmitted at the reporting agency’s option.Because the optional subcategories of datacan be aggregated to the required level,these subcategories define the more aggre-gated data. The definitions for data reported

at the required level are consistent with, andsummarized from, those for the more de-tailed optional data.

E. The Uniform System of Accounts and Records

The Uniform System of Accounts andRecords (USOA) consists of a financial ac-counting and operational recordkeeping sys-tem designed for mass transportation man-agers and planners. Its uniformity permitsmore thorough and accurate comparisonsand analyses of different transit agencies’operating costs and efficiencies than if eachhad a unique recordkeeping and accountingsystem. The System establishes various cat-egories of accounts and records forclassifying mass transportation operatingand financial data, and includes precise defi-nitions of transportation terminology to en-sure that all users share a common under-standing of how to use and interpret the col-lected data.

(1) Use of the Accounts and Records System

Beneficiaries of, and applicants for, Fed-eral assistance are not required to use theUniform System of Accounts and Records inkeeping their own records. If an applicant orbeneficiary chooses not to use the System,however, it must nevertheless be able totranslate its accounts and records system tothe accounts prescribed in the System. Theaccounting system that the reporting agencyuses must permit preparation of financialand operating data that conform to the Uni-form System directly from its records at theend of the fiscal year, and must be consistentwith the following:

(i) The data must have been developedusing the accrual method of accounting.Those transit systems that use cash-basis ac-counting, in whole or in part, must makework sheet adjustments in their accountbooks to record the data on the accrualbasis.

(ii) Reporting agencies must follow or beable to directly translate their system to theaccounting treatment specified in the publi-cation ‘‘Uniform System of Accounts andRecords.’’

(iii) The reporting agency’s accountingcategories (chart of accounts) must be cor-rectly related, using a clear audit trail, tothe accounting categories prescribed in theUniform System of Accounts and Records.

(2) General Structure of Uniform System ofAccounts and Records

In the Section 15 Uniform System of Ac-counts and Records, operating expenses in-curred by the transit system are classifiedby transit mode. The FTA developed expenseclassifications in two dimensions for uni-formity and to enhance the usefulness of the


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49 CFR Ch. VI (10–1–99 Edition)Pt. 630, App. A

data collected under section 15. The classi-fications are typical of those of most transitaccounting systems. The two dimensions are:

(i) The type of expenditure (expense objectclass); and

(ii) The function or activity performed.Operating expenses can be identified either

in function or object class categories, orcross-classified, allowing identification usingboth categories. The Uniform System alsocategorizes expenditures by four basic func-tions submitted by all reporting agencies. Alimited number of additional details are op-tional. All reporting agencies are required touse a single set of object class categories.

The Uniform System has a single set ofrevenue object classes to be used by all re-porting agencies, and provides a limitednumber of additional details that are op-tional.

The Uniform System provides a classifica-tion for sources and uses of capital to be sub-mitted by all reporting agencies. These clas-sifications replace capital information pre-viously required on the balance sheet andcapital subsidiary schedule.

The Uniform System of Accounts andRecords also includes collecting and record-ing of certain operating data elements.

Details and definitions of the expense ob-ject classes, functions, revenue object class-es, sources and uses of capital, and operatingdata elements are contained in the currentedition of the ‘‘Reporting Manual,’’ which isupdated annually, and the USOA referencedocuments.

F. The Reporting System

(1) The Section 15 Reporting System con-sists of forms and procedures for transmit-ting data from transit agencies to the FTA.All beneficiaries of Federal financial assist-ance must submit the required forms and in-formation in order to allow the FTA to: (1)Store and generate information on the Na-tion’s mass transportation systems; and (2)calculate apportionment allocations for thesection 9 formula grant program (for urban-ized areas of 200,000 or more inhabitants).Agencies submitting Section 15 reports mayonly submit data for transit services whichthey directly operate and purchase undercontract from public agencies and/or privatecarriers.

Separate and complete Section 15 reportsmust be submitted by or for each purchasedtransportation service provider that operates100 or more revenue vehicles for the pur-chased service during the maximum serviceperiod. The reporting requirements includethe following major segments, which arebased on information assembled through theUniform System of Accounts and Records:

1. Capital report.2. Revenue report.3. Expense report.4. Nonfinancial operating data reports.

5. Miscellaneous auxiliary questionnairesand subsidiary schedules.

6. Data declarations.(2) The Section 15 Reporting System in-

cludes two data declarations.(a) The Chief Executive Officer (CEO) Cer-

tification.The CEO of each reporting agency is re-

quired to submit a certification with eachannual Section 15 report. The certificationmust attest:

• To the accuracy of all data contained inthe Section 15 report;

• That all data submitted in the Section 15report are in accord with Section 15 defini-tions;

• If applicable, that the reporting agency’saccounting system used to derive all datasubmitted in the Section 15 report is the sec-tion 15 Uniform System of Accounts andRecords and that a Section 15 report usingthis system was certified by an independentauditor in a previous report year;

• If applicable, the fact that the reportingagency’s internal accounting system is otherthan the Uniform System of Accounts andRecords, and that its: (i) accounting systemuses the accrual basis of accounting, (ii) ac-counting system is directly translated, usinga clear audit trail, to the accounting treat-ment and categories specified by the section15 Uniform System of Accounts and Records,and (iii) accounting system and direct trans-lation to the Uniform System of Accountsand Records are the same as those certifiedby an independent auditor in a previous re-porting year; and

• That a 100% count of passenger mile datawas conducted or that the sampling methodused to collect passenger mile data for eachmode/type of service meets the FTA require-ments.

(b) Auditor Statement on Section 15 Finan-cial Data Reporting Forms and Section 9Data.

Reporting agencies must submit with theirSection 15 report a statement signed by anindependent public accountant or other re-sponsible independent entity such as a stateaudit agency. This statement must expressan opinion on whether the financial data re-porting forms in the Section 15 reportpresent fairly, in all material respects, theinformation required to be set forth thereinin accordance with the Uniform System ofAccounts and Records. The statement shallalso indicate whether any of the reportingforms or data elements do not conform tothe section 15 requirements, and describe thediscrepancies. The statement must considerboth required and optional data entries.

Each agency is required to file an AuditorStatement unless it received a written waiv-er from the FTA. The criteria in either Con-dition I or Condition II for granting a finan-cial data waiver are:


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Condition I. The reporting agency (1) hasadopted the Industry Uniform System of Ac-counts and Records (USOA) and (2) has pre-viously submitted a Section 15 report thatwas compiled using the USOA and was re-viewed by an independent auditor; or

Condition II. The reporting agency (1) usesan internal accounting system other thanthe accounting system prescribed by theUSOA, (2) uses the accrual basis of account-ing, (3) directly translates the system andaccounting categories, using a clear audittrail, to the accounting treatment and cat-egories specified by the USOA, and (4) haspreviously submitted a Section 15 reportthat was compiled using the same internalaccounting system and translation to theUSOA and was reviewed by an independentauditor.

For agencies that have received a waiver,the CEO annual Certification must verifythat the financial data meet one of the abovetwo conditions.

Additionally, all reporting agencies thatare in or serve urbanized areas with popu-lations of 200,000 or more and whose reportcovers 100 or more vehicles in annual max-imum service across all modes and types ofservice must have an independent auditor re-view all section 15 data used in the section 9formula allocation. The statement shoulddiscuss, by mode and type of service: direc-tional route miles, vehicle revenue miles,passenger miles, and operating cost, and in-clude both directly operated and purchasedservice. The independent, certified public ac-countant shall perform the verification inaccordance with the ‘‘Statements on Stand-ards for Attestation Engagements’’ issued bythe American Institute of Certified PublicAccountants. The specific procedures to bereviewed are described in the most recentSection 15 Reporting Manual.

PART 633—PROJECTMANAGEMENT OVERSIGHT

Subpart A—General Provisions

Sec.633.1 Purpose.633.3 Scope.633.5 Definitions.

Subpart B—Project Management OversightServices

633.11 Covered projects.633.13 Initiation of PMO services.633.15 Access to information.633.17 PMO contractor eligibility.633.19 Financing the PMO program.

Subpart C—Project Management Plans

633.21 Basic requirement.

633.23 FTA review of PMP.633.25 Contents of a project management

plan.633.27 Implementation of a project manage-

ment plan.633.29 PMP waivers.

AUTHORITY: 49 U.S.C. 1601 et. seq., 1619.

SOURCE: 54 FR 36711, Sept. 1, 1989, unlessotherwise noted.

Subpart A—General Provisions§ 633.1 Purpose.

This part implements section 324 ofthe Surface Transportation and Uni-form Relocation Assistance Act of 1987(Pub. L. 100–17), which added section 23to the FT Act. The part provides for atwo-part program for major capitalprojects receiving assistance from theagency. First, subpart B discussesproject management oversight, de-signed primarily to aid FTA in its roleof ensuring successful implementationof federally-funded projects. Second,subpart C discusses the project man-agement plan (PMP) required of allmajor capital projects. The PMP is de-signed to enhance the recipient’s plan-ning and implementation efforts and toassist FTA’s grant application analysisefforts.

§ 633.3 Scope.This rule applies to a recipient of

Federal financial assistance under-taking a major capital project usingfunds made available under:

(a) Sections 3, 9, or 18 of the FederalMass Transit Act of 1964, as amended;

(b) 23 U.S.C. 103(e)(4); or(c) Section 14(b) of the National Cap-

ital Transportation Amendments of1979 (93 Stat. 1320, Pub. L. 96–184).

§ 633.5 Definitions.As used in this part:Administrator means the Adminis-

trator of the Federal Transit Adminis-tration or the Administrator’s des-ignee.

Days means calendar days.Fixed guideway means any public

transportation facility which utilizesand occupies a separate right-of-way orrails. This includes, but is not limitedto, rapid rail, light rail, commuter rail,automated guideway transit, peoplemovers, and exclusive facilities for


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49 CFR Ch. VI (10–1–99 Edition)§ 633.11

buses and other high occupancy vehi-cles.

Full funding agreement means a writ-ten agreement between FTA and a re-cipient that establishes a financialceiling with respect to the Govern-ment’s participation in a project; setsforth the scope of a project; and setsforth the mutual understanding, terms,and conditions relating to the con-struction and management of a project.

Major capital project means a projectthat:

(1) Involves the construction of a newfixed guideway or extension of an exist-ing fixed guideway;

(2) Involves the rehabilitation ormodernization of an existing fixedguideway with a total project cost inexcess of $100 million; or

(3) The Administrator determines is amajor capital project because theproject management oversight pro-gram will benefit specifically the agen-cy or the recipient. Typically, thismeans a project that:

(i) Generally is expected to have atotal project cost in excess of $100 mil-lion or more to construct;

(ii) Is not exclusively for the routineacquisition, maintenance, or rehabili-tation of vehicles or other rollingstock;

(iii) Involves new technology;(iv) Is of a unique nature for the re-

cipient; or(v) Involves a recipient whose past

experience indicates to the agency theappropriateness of the extension of thisprogram.

Project management oversight meansthe monitoring of a major capitalproject’s progress to determine wheth-er a project is on time, within budget,in conformance with design criteria,constructed to approved plans andspecifications and is efficiently and ef-fectively implemented.

Project management plan means awritten document prepared by a recipi-ent that explicitly defines all tasksnecessary to implement a major cap-ital project.

Recipient means a direct recipient ofFederal financial assistance from FTA.

FT Act means the Federal Mass Tran-sit Act of 1964, as amended.

FTA means the Federal Transit Ad-ministration.

Subpart B—Project ManagementOversight Services

§ 633.11 Covered projects.

The Administrator may contract forproject management oversight serviceswhen the following two conditionsapply:

(a) The recipient is using funds madeavailable under section 3, 9, or 18 of theFederal Mass Transit Act of 1964, asamended; 23 U.S.C. 103(e)(4); or section14(b) of the National Capital Transpor-tation Amendments of 1979; and

(b) The project is a ‘‘major capitalproject’’.

§ 633.13 Initiation of PMO services.

PMO services will be initiated assoon as it is practicable, once the agen-cy determines this part applies. Inmost cases, this means that PMO willbegin during the preliminary engineer-ing phase of the project. However, con-sistent with other provisions in thispart, the Administrator may determinethat a project is a ‘‘major capitalproject’’ at any point during its imple-mentation. Should this occur, PMOwill begin as soon as practicable afterthis agency determination.

§ 633.15 Access to information.

A recipient of FTA funds for a majorcapital project shall provide the Ad-ministrator and the PMO contractorchosen under this part access to itsrecords and construction sites, as rea-sonably may be required.

§ 633.17 PMO contractor eligibility.

(a) Any person or entity may provideproject management oversight servicesin connection with a major capitalproject, with the following exceptions:

(1) An entity may not provide PMOservices for its own project; and

(2) An entity may not provide PMOservices for a project if there exists aconflict of interest.

(b) In choosing private sector personsor entities to provide project manage-ment oversight services, FTA uses theprocurement requirements in the gov-ernment-wide procurement regula-tions, found at 48 CFR CH I.


933


§ 633.19 Financing the PMO program.

(a) FTA is authorized to expend up to1⁄2 of 1 percent of the funds made avail-able each fiscal year under sections 3,9, or 18 of the FT Act, 23 U.S.C.103(e)(4), or section 14(b) of the Na-tional Capital Transportation Amend-ments of 1979 (93 Stat. 1320) to contractwith any person or entity to provide aproject management oversight servicein connection with a major capitalproject as defined in this part.

(b) A contract entered into betweenFTA and a person or entity for projectmanagement oversight services underthis part will provide for the paymentby FTA of 100 percent of the cost ofcarrying out the contract.

Subpart C—Project ManagementPlans

§ 633.21 Basic requirement.

(a) If a project meets the definitionof major capital project, the recipientshall submit a project managementplan prepared in accordance with§ 633.25 of this part, as a condition ofFederal financial assistance. As a gen-eral rule, the PMP must be submittedduring the grant review process and ispart of FTA’s grant application review.This section applies if:

(1) The project fails under one of theautomatic major capital investmentproject categories (§ 633.5(1) or (2) ofthis part); or

(2) FTA makes a determination thata project is a major capital project,consistent with the definition of majorcapital project in § 633.5. This deter-mination normally will be made duringthe grant review process. However,FTA may make such determinationafter grant approval.

(b)(1) FTA will notify the recipientwhen it must submit the PMP. Nor-mally, FTA will notify the recipientsometime during the grant reviewprocess. If FTA determines the projectis major under its discretionary au-thority after the grant has been ap-proved, FTA will inform the recipientof its determination as soon as pos-sible.

(2) Once FTA has notified the recipi-ent that it must submit a plan, the re-

cipient will have a minimum of 90 daysto submit the plan.

§ 633.23 FTA review of PMP.

Within 60 days of receipt of a projectmanagement plan, the Administratorwill notify the recipient that:

(a) The plan is approved;(b) The plan is disapproved, including

the reasons for the disapproval;(c) The plan will require modifica-

tion, as specified, before approval; or(d) The Administrator has not yet

completed review of the plan, and statewhen it will be reviewed.

§ 633.25 Contents of a project manage-ment plan.

At a minimum, a recipient’s projectmanagement plan shall include—

(a) A description of adequate recipi-ent staff organization, complete withwell-defined reporting relationships,statements of functional responsibil-ities, job descriptions, and job quali-fications;

(b) A budget covering the projectmanagement organization, appropriateconsultants, property acquisition, util-ity relocation, systems demonstrationstaff, audits, and such miscellaneouscosts as the recipient may be preparedto justify;

(c) A construction schedule;(d) A document control procedure

and recordkeeping system;(e) A change order procedure which

includes a documented, systematic ap-proach to the handling of constructionchange orders;

(f) A description of organizationalstructures, management skills, andstaffing levels required throughout theconstruction phase;

(g) Quality control and quality assur-ance programs which define functions,procedures, and responsibilities forconstruction and for system installa-tion and integration of system compo-nents;

(h) Material testing policies and pro-cedures;

(i) Plan for internal reporting re-quirements including cost and schedulecontrol procedures; and

(j) Criteria and procedures to be usedfor testing the operational system orits major components;


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49 CFR Ch. VI (10–1–99 Edition)§ 633.27

§ 633.27 Implementation of a projectmanagement plan.

(a) Upon approval of a project man-agement plan by the Administrator therecipient shall begin implementing theplan.

(b) If a recipient must modify an ap-proved project management plan, therecipient shall submit the proposedchanges to the Administrator alongwith an explanation of the need for thechanges.

(c) A recipient shall submit periodicupdates of the project managementplan to the Administrator. Such up-dates shall include, but not be limitedto:

(1) Project budget;(2) Project schedule;(3) Financing, both capital and oper-

ating;(4) Ridership estimates, including op-

erating plan; and(5) Where applicable, the status of

local efforts to enhance ridership whenestimates are contingent, in part, uponthe success of such efforts.

(d) A recipient shall submit currentdata on a major capital project’s budg-et and schedule to the Administratoron a monthly basis.

§ 633.29 PMP waivers.

A waiver will be considered upon ini-tiation by the grantee or by the agencyitself. The Administrator may, on acase-by-case basis, waive:

(a) Any of the PMP elements in§ 633.25 of this part if the Administratordetermines the element is not nec-essary for a particular plan; or

(b) The requirement of having a newproject management plan submittedfor a major capital project if a recipi-ent seeks to manage the major capitalproject under a previously-approvedproject management plan.

PART 639—CAPITAL LEASES

Subpart A—General

Sec.639.1 General overview of this part.639.3 Purpose of this part.639.5 Scope of this part.639.7 Definitions.

Subpart B—Requirements

639.11 Lease qualification requirements.639.13 Eligible types of leases.639.15 Eligible forms of grant.639.17 Eligible lease costs.639.19 Other Federal requirements.

Subpart C—Cost-Effectiveness

639.21 Determination of cost-effectiveness.639.23 Calculation of purchase or construc-

tion cost.639.25 Calculation of lease cost.639.27 Minimum criteria.

Subpart D—Lease Management

639.31 Early lease termination or modifica-tion.

639.33 Management of leased assets.

AUTHORITY: 49 U.S.C. 5302; 49 CFR 1.51.

SOURCE: 56 FR 51794, Oct. 15, 1991, unlessotherwise noted.

Subpart A—General

§ 639.1 General overview of this part.This part contains the requirements

to qualify for capital assistance whenleasing facilities or equipment underthe Federal transit laws. This part isset out in four subparts, with subpart Acontaining general information onscope and definitions. Subpart B con-tains the principal requirements of thispart, including eligibility require-ments, the self-certification systemused, and identification of the variousforms of leases and grants that are eli-gible under the program. Subpart Balso contains a section on other Fed-eral requirements that may apply. Sub-part C includes the actual calculationsthat each recipient should undertakebefore certifying that a lease is cost-ef-fective. Finally, subpart D contains re-quirements on early lease terminationand project management in general.

[63 FR 68366, Dec. 10, 1998]

§ 639.3 Purpose of this part.This rule implements section 3003 of

the Transportation Equity Act for the21st Century (Pub. L. 105–178). Section3003 amended section 5302 of Chapter 53of Title 49 of the United States Code toallow a recipient to use capital fundsto finance the leasing of facilities andequipment on the condition that the


935


leasing arrangements are more cost ef-fective than purchase or construction.

[63 FR 68367, Dec. 10, 1998]

§ 639.5 Scope of this part.

This part applies to all requests forcapital assistance under Chapter 53 ofTitle 49 of the United States Codewhere the proposed method of obtain-ing a capital asset is by lease ratherthan purchase or construction.

[63 FR 68367, Dec. 10, 1998]


In this part:Applicant is included in the term ‘‘re-

cipient’’.Capital asset means facilities or

equipment with a useful life of at leastone year, which are eligible for capitalassistance.

Capital assistance means Federal fi-nancial assistance for capital projectsunder section 9 of the FT Act.

Capital lease means any transactionwhereby the recipient acquires theright to use a capital asset without ob-taining full ownership regardless of thetax status of the transaction.

Equipment means non-expendable per-sonal property.

Facilities means real property, includ-ing land, improvements and fixtures.

Interest rate means the most advan-tageous interest rate actually avail-able to the recipient in the market.

Present value means the value at thetime of calculation of a future pay-ment, or series of future payments dis-counted by the time value of money asrepresented by an interest rate or simi-lar cost of funds.

Recipient means an entity that re-ceives Federal financial assistancefrom FTA, including an entity that re-ceives Federal financial assistancefrom FTA through a State or otherpublic body. In this part, a recipient in-cludes an applicant for Federal finan-cial assistance.

FT Act means the Federal Mass Tran-sit Act of 1964, as amended, 49 U.S.C.1601 et seq.


Subpart B—Requirements§ 639.11 Lease qualification require-

ments.(a) A lease may qualify for capital as-

sistance if it meets the following cri-teria:

(1) The capital asset to be acquiredby lease is otherwise eligible for cap-ital assistance;

(2) There is or will be no existingFederal interest in the capital asset asof the date the lease will take effectunless as determined pursuant to§ 639.13(b); and

(3) Lease of the capital asset is morecost-effective than purchase or con-struction of the asset, as determinedunder subpart C of this part.

(b) Once a lease has been qualified forcapital assistance, it need not be re-qualified absent an affirmative act oromission by the recipient that vitiatesthe cost-effectiveness determination.

§ 639.13 Eligible types of leases.(a) General. Any leasing arrangement,

the terms of which provide for the re-cipient’s use of a capital asset, poten-tially is eligible as a capital projectunder Chapter 53 of Title 49 of theUnited States Code, regardless of theclassification of the leasing arrange-ment for tax purposes.

(b) Special circumstances. A recipientmay request FTA to determine the eli-gibility of a certain financial arrange-ment if the recipient believes it mightnot meet the requirements of this part.

(c) Lump sum lease. A recipient thatwishes to enter into a lease which re-quires the draw down of a single lumpsum payment at the inception of thelease (or payments in advance of theincurrence of costs) rather than peri-odic payments during the life of thelease must notify FTA prior to execu-tion of the lease concerning how it willensure satisfactory continuing controlof the asset for the duration of thelease. FTA has the right to disapproveany arrangements where it has notbeen demonstrated that the recipientwill have control over the asset. FTAmay require the recipient to submit itscost-effectiveness comparison for re-view.

(d) Pre-existing lease. A lease enteredinto before grant approval, or before


936

49 CFR Ch. VI (10–1–99 Edition)§ 639.15

November 14, 1991 may be eligible forcapital assistance for costs incurredafter approval of such a lease by FTAunder this part, if

(1) The lease is otherwise eligibleunder this part;

(2) The recipient can demonstratethat the lease, when entered into, wasmore cost effective than purchase orconstruction; and

(3) The procurement of the asset bylease was in accordance with Federalrequirements that applied at the timethe procurement tool place.

[56 FR 51794, Oct. 15, 1991, as amended at 63FR 68367, Dec. 10, 1998]

§ 639.15 Eligible forms of grant.

A recipient may choose to receivecapital assistance for a capital leaseapproved under this part—

(a) In a single grant under whichlease payments may be drawn down pe-riodically for the life of the lease; or

(b) In increments that are obligatedby FTA periodically (usually in annualsection 9 grants). In this case, a recipi-ent—

(1) Must certify to FTA that it hasthe financial capacity to meet its fu-ture obligations under the lease in theevent Federal funds are not availablefor capital assistance in subsequentyears; and

(2) May incur costs under its lease be-fore FTA’s obligation of future incre-ments of funding for such a lease.These costs are reimbursable in futuregrants, so long as the terms of thelease do not substantially change.

§ 639.17 Eligible lease costs.

(a) All costs directly attributable tomaking a capital asset available to thelessee are eligible for capital assist-ance, including, but not limited to—

(1) Finance charges, including inter-est;

(2) Ancillary costs such as deliveryand installation charges; and

(3) Maintenance costs.(b) Any asset leased under this part

must be eligible for capital assistanceunder a traditional purchase or con-struction grant.

[61 FR 25090, May 17, 1996]

§ 639.19 Other Federal requirements.

(a) A recipient of capital assistancefor a capital lease is subject to thesame statutory and administrative re-quirements as a recipient who pur-chases or constructs a capital asset.

(b) A lessor of a capital lease is sub-ject to the same statutory and admin-istrative requirements as a direct sell-er of the same capital asset would bewhen the lessor—

(1) Purchases or constructs a capitalasset in contemplation of leasing it toa recipient; or

(2) Modifies an existing capital assetin contemplation of leasing it to a re-cipient.

Subpart C—Cost-Effectiveness

§ 639.21 Determination of cost-effec-tiveness.

(a) To qualify a lease for capital as-sistance, a recipient must—

(1) Make a written comparison of thecost of leasing the asset with the costof purchasing or constructing it; and

(2) Certify to FTA before enteringinto the lease or before receiving a cap-ital grant for the asset, whichever islater, that obtaining the asset by leaseis more cost-effective than purchase orconstruction of such asset.

(b) For purposes of this part, obtain-ing the asset by lease is more cost-ef-fective than purchase or constructionwhen the lease cost calculated under§ 639.25 of this part is less than the pur-chase cost calculated under § 639.23 ofthis part.

(c) If a recipient is unable to performthe prescribed cost-effectiveness com-parison as described in this subpart, itmay ask FTA to approve an alternateform of cost-effectiveness evaluation.

§ 639.23 Calculation of purchase orconstruction cost.

(a) For purposes of this subpart, thepurchase or construction cost of a cap-ital asset is—

(1) The estimated cost to purchase orconstruct the asset; plus

(2) Ancillary costs such as deliveryand installation; plus

(3) The net present value of the esti-mated future cost to provide any other


937


service or benefit requested by the ap-plicant in its proposal to obtain thecapital asset.

(b) The estimated cost to purchase orconstruct must be—

(1) Reasonable;(2) Based on realistic current market

conditions; and(3) Based on the expected useful life

of the asset in mass transportationservice, as indicated in paragraph (c) ofthis section.

(c) For purposes of this part, the ex-pected useful life of a revenue vehicleis the useful life which is establishedby FTA for recipients of Federal assist-ance under FTA’s Circulars for section9 recipients. For assets other than rev-enue vehicles, the applicant is respon-sible for establishing a reasonable ex-pected useful life. If the recipient doesnot intend to use the capital asset it isproposing to obtain by lease in masstransportation service for its entire ex-pected useful life, when calculating thepurchase cost, the recipient must cal-culate the fair market value of theasset as of the date the lease will ter-minate pursuant to Guidelines found insection 108(b) of part II StandardTerms and Conditions for valuation ofproperty withdrawn from transit usebefore the end of its useful life and sub-tract that amount from the purchaseprice. The resulting amount is the pur-chase price for purposes of this rule.

§ 639.25 Calculation of lease cost.

(a) For purposes of this part, thelease cost of a capital asset is—

(1) The cost to lease the asset for thesame use and same time period speci-fied in the recipient’s proposal to ob-tain the asset by purchase or construc-tion; plus

(2) Ancillary costs such as deliveryand installation; plus

(3) The net present value of the esti-mated future cost to provide any otherservice or benefit requested by the ap-plicant in its proposal to obtain thecapital asset.

(b) The estimated lease costs must bereasonable, based on realistic marketconditions applicable to the recipientand must be expressed in present valueterms.

§ 639.27 Minimum criteria.In making the comparison between

leasing and purchasing or constructingan asset, recipients should ascribe a re-alistic dollar value to any non-finan-cial factors that are considered byusing performance-based specificationsin the comparison. In addition to fac-tors unique to each recipient, the fol-lowing factors are to be used wherepossible and appropriate:

(a) Operation costs;(b) Reliability of service;(c) Maintenance costs;(d) Difference in warranties;(e) Passenger comfort;(f) Insurance costs;(g) Costs/savings related to timing of

acquisition of asset.(h) Value of asset at expiration of the

lease.

Subpart D—Lease Management§ 639.31 Early lease termination or

modification.(a) Except as provided in paragraph

(c) of this section, if a capital leaseunder this part is terminated or itsterms substantially modified beforethe end of the period used in the cost-effectiveness evaluation, or if the re-cipient by an affirmative act or omis-sion vitiates the cost-effectiveness de-termination of the lease, future leasecosts will no longer qualify as eligiblecapital expenses. In addition, the re-cipient must reimburse the project—

(1) Any Federal funds paid for theportion of the lease term eliminated byearly termination; and

(2) The Federal share of the excess, ifany, of the present value of lease costs,which exceeds the purchase costs ascalculated under subpart C of this partfor the period of the lease up to thepoint of termination.

(b) Penalties resulting from earlytermination of a capital lease underthis part are not eligible for Federal fi-nancial assistance.

(c) Paragraph (a) of this section doesnot apply if a lessor defaults on or oth-erwise does not meet its obligationsunder the capital lease and the recipi-ent takes appropriate action to ensurethat the procurement continues to becost-effective. FTA shall be notified ofany such event.


938

49 CFR Ch. VI (10–1–99 Edition)§ 639.33

§ 639.33 Management of leased assets.Each recipient must maintain an in-

ventory of capital assets acquired bystandard FTA project managementguidelines.

PART 640—CREDIT ASSISTANCEFOR SURFACE TRANSPORTATIONPROJECTS

AUTHORITY: Secs. 1501 et seq., Pub. L. 105–178, 112 Stat. 107, 241, as amended; 23 U.S.C.181–189 and 315; 49 CFR 1.51.

§ 640.1 Cross-reference to credit assist-ance.

The regulations in 49 CFR part 80shall be followed in complying with therequirements of this part. Title 49,CFR, part 80 implements the Transpor-tation Infrastructure Finance and In-novation Act of 1998, secs. 1501 et seq.,Pub. L. 105–178, 112 Stat. 107, 241.

[64 FR 29753, June 2, 1999]

PART 653—PREVENTION OF PRO-HIBITED DRUG USE IN TRANSITOPERATIONS

Subpart A—General

Sec.653.1 Overview.653.3 Purpose.653.5 Applicability.653.7 Definitions.653.9 Preemption of State and local laws.653.11 Other requirements imposed by an

employer.653.13 Starting date for drug testing pro-

grams.

Subpart B—Program Requirements

653.21 Requirement to establish an anti-drug program.

653.23 Required elements of an anti-drugtesting program.

653.25 Policy statement contents.653.27 Requirement to disseminate policy.653.29 Education and training programs.653.31 Drug testing.653.33 Notice requirement.653.35 Action when employee has a verified

positive drug test result.653.37 Referral, evaluation, and treatment.

Subpart C—Types of Drug Testing

653.41 Pre-employment testing.653.43 Reasonable suspicion testing.653.45 Post-accident testing.

653.47 Random testing.653.49 Return to duty testing.653.51 Follow-up testing.

Subpart D—Drug Testing Procedures

653.61 Compliance with testing proceduresrequirements.

653.63 Substance abuse professional.653.65 Supervisor acting as collection site

person.

Subpart E—Administrative Requirements

653.71 Retention of records.653.73 Reporting of results in a management

information system.653.75 Access to facilities and records.

Subpart F—Certifying Compliance

653.81 Compliance a condition of FTA finan-cial assistance.

653.83 Requirement to certify compliance.

APPENDIX A TO PART 653 [RESERVED]APPENDIX B TO PART 653—FTA DRUG TESTING

MANAGEMENT INFORMATION SYSTEM (MIS)DATA COLLECTION FORM

APPENDIX C TO PART 653—FTA DRUG TESTINGMANAGEMENT INFORMATION SYSTEM (MIS)‘‘EZ’’ DATA COLLECTION FORM


SOURCE: 59 FR 7589, Feb. 15, 1994, unlessotherwise noted.

Subpart A—General

§ 653.1 Overview.

(a) This part describes the anti-drugprogram to be implemented by a recipi-ent of certain funding from the FederalTransit Administration.

(b) The part includes six subparts.Subpart A covers the general require-ments of the FTA anti-drug program.Subpart B specifies the basic require-ments of each employer’s anti-drugprogram, including the types of teststo be conducted, and the elements re-quired to be in each employer’s drugtesting program. Subpart C describesthe different types of drug tests to beconducted. Subpart D describes a newdrug testing procedural requirementmandated by the Act. Subpart E con-tains administrative matters such asreports and recordkeeping require-ments. Subpart F specifies how a re-cipient certifies compliance with therule.


939


§ 653.3 Purpose.The purpose of this part is to require

a recipient to implement an anti-drugprogram to deter and detect the use ofprohibited drugs by covered employees.

§ 653.5 Applicability.(a) Except as specifically excluded in

paragraph (b) of this section, this partapplies to a recipient under—

(1) Section 3, 9, or 18 of the FederalTransit Act, as amended (FT Act); or

(2) Section 103(e)(4) of title 23 of theUnited States Code.

(b) A recipient operating a railroadregulated by the Federal Railroad Ad-ministration (FRA) shall follow 49 CFRparts 219 and 382, as appropriate, and§ 653.83 of this part for its railroad oper-ations, and this part for its non-rail-road operations, if any.

NOTE: For recipients who operate marinevessels, see also Coast Guard regulations at33 CFR part 95 and 46 CFR parts 4,5, and 16.)

[59 FR 7589, Feb. 15, 1994, as amended at 60FR 12297, Mar. 6, 1995]

§ 653.7 Definitions.As used in this part—Accident means an occurrence associ-

ated with the operation of a vehicle, ifas a result—

(1) An individual dies;(2) An individual suffers a bodily in-

jury and immediately receives medicaltreatment away from the scene of theaccident;

(3) With respect to an occurrence inwhich the mass transit vehicle in-volved is a bus, electric bus, van, orautomobile, one or more vehicles in-curs disabling damage as the result ofthe occurrence and is transported awayfrom the scene by a tow truck or othervehicle;

(4) With respect to an occurrence inwhich the mass transit vehicle in-volved is a rail car, trolley car, trolleybus, or vessel, the mass transit vehicleis removed from revenue service.

Administrator means the Adminis-trator of the Federal Transit Adminis-tration or the Administrator’s des-ignee.

Anti-drug program means a programto detect and deter the use of prohib-ited drugs as required by this part.

Canceled test means a test that hasbeen declared invalid by a Medical Re-

view Officer. It is neither a verifiedpositive nor a verified negative test,and includes a specimen rejected fortesting by a laboratory.

Certification means a recipient’s writ-ten statement, authorized by the orga-nization’s governing board or other au-thorizing official, that the recipienthas complied with the provisions ofthis part. (See § 653.77 for certificationrequirements.)

Chain-of-custody means the proce-dures in part 40 of this title concerningthe handling of a urine specimen.

Consortium means an entity, includ-ing a group or association of employ-ers, operators, recipients, subrecipi-ents, or contractors, which providesdrug testing as required by this part, orother DOT drug testing rule, and whichacts on behalf of the employer.

Contractor means a person or organi-zation that provides a service for a re-cipient, subrecipient, employer, or op-erator consistent with a specific under-standing or arrangement. The under-standing can be a written contract oran informal arrangement that reflectsan ongoing relationship between theparties.

Covered employee means a person, in-cluding an applicant or transferee, whoperforms a safety-sensitive function foran entity subject to this part; however,a volunteer is covered only if operatinga vehicle designed to transport sixteenor more passengers, including the driv-er.

Disabling damage means damagewhich precludes departure of a motorvehicle from the scene of the accidentin its usual manner in daylight aftersimple repairs.

(1) Inclusion. Damage to motor vehi-cles that could have been driven, butwould have been further damaged if sodriven.

(2) Exclusions. (i) Damage which canbe remedied temporarily at the sceneof the accident without special tools orparts.

(ii) Tire disablement without otherdamage even if no spare tire is avail-able.

(iii) Headlamp or taillight damage.(iv) Damage to turn signals, horn, or

windshield wipers which makes theminoperative.


940

49 CFR Ch. VI (10–1–99 Edition)§ 653.7

DOT means the United States De-partment of Transportation.

DOT agency means an agency (or ‘‘op-erating administration’’) of the UnitedStates Department of Transportationadministering regulations requiringdrug testing (see parts 199, 219, 382, and653 of this title; 14 CFR part 121, appen-dix J; 33 CFR part 95; and 46 CFR parts4 and 16).

Employer means a recipient or otherentity that provides mass transpor-tation service or which performs a safe-ty-sensitive function for such recipientor other entity. This term includessubrecipients, operators, and contrac-tors.

FTA means the Federal Transit Ad-ministration, an agency of the U.S. De-partment of Transportation.

Large operator means a recipient orsubrecipient primarily operating in anurbanized area of 200,000 or more inpopulation.

Medical Review Officer(MRO) means alicensed physician (medical doctor ordoctor of osteopathy) responsible forreceiving laboratory results generatedby an employer’s drug testing programwho has knowledge of substance abusedisorders and has appropriate medicaltraining to interpret and evaluate anindividual’s confirmed positive test re-sult together with his or her medicalhistory and any other relevant bio-medical information.

Positive rate means the number ofpositive results for random drug testsconducted under this part plus thenumber of refusals of random tests re-quired by this part, divided by thetotal number of random drug tests con-ducted under this part plus the numberof refusals of random tests required bythis part.

Prohibited drug means marijuana, co-caine, opiates, amphetamines, orphencyclidine.

Railroad means all forms of non-high-way ground transportation that run onrails or electromagnetic guideways, in-cluding (1) commuter or other short-haul rail passenger service in a metro-politan or suburban area, as well asany commuter rail service which wasoperated by the Consolidated Rail Cor-poration as of January 1, 1979, and (2)high speed ground transportation sys-tems that connect metropolitan areas,

without regard to whether they usenew technologies not associated withtraditional railroads. Such term doesnot include rapid transit operationswithin an urban area that are not con-nected to the general railroad systemof transportation.

Recipient means an entity receivingFederal financial assistance under sec-tion 3, 9, or 18, of the FT Act, or undersection 103(e)(4) of title 23 of the UnitedStates Code.

Refuse to submit means that a coveredemployee fails to provide a urine sam-ple as required by 49 CFR part 40, with-out a genuine inability to provide aspecimen (as determined by a medicalevaluation), after he or she has re-ceived notice of the requirement to betested in accordance with the provi-sions of this part, or engages in con-duct that clearly obstructs the testingprocess.

Safety-sensitive function means any ofthe following duties:

(1) Operating a revenue service vehi-cle, including when not in revenueservice;

(2) Operating a nonrevenue servicevehicle, when required to be operatedby a holder of a Commercial Driver’sLicense;

(3) Controlling dispatch or movementof a revenue service vehicle;

(4) Maintaining (including repairs,overhaul, and rebuilding) a revenueservice vehicle or equipment used inrevenue service, unless the recipientreceives funding under 49 U.S.C. 5309, isin an area less than 50,000 in populationand contracts out such services, orfunding under 49 U.S.C. 5311 and con-tracts out such services.

(5) Carrying a firearm for securitypurposes.

Small operator means a recipient orsubrecipient primarily operating in anonurbanized area or in an urbanizedarea of less than 200,000 in population.

Vehicle means a bus, electric bus,van, automobile, rail car, trolley car,trolley bus, or vessel. A mass transit ve-hicle is a vehicle used for mass trans-portation or for ancillary services.

Verified negative (drug test result)means a drug test result reviewed by amedical review officer and determinedto have no evidence of prohibited druguse.


941


Verified positive (drug test result)means a drug test result reviewed by amedical review officer and determinedto have evidence of prohibited druguse.

[59 FR 7589, Feb. 15, 1994, as amended at 59FR 62230, Dec. 2, 1994; 60 FR 12297, Mar. 6,1995; 60 FR 39620, Aug. 2, 1995; 61 FR 37224,July 17, 1996; 64 FR 426, Jan. 5, 1999]

§ 653.9 Preemption of State and locallaws.

(a) Except as provided in paragraph(b) of this section, this part preemptsany State or local law, rule, regula-tion, or order to the extent that:

(1) Compliance with both the State orlocal requirement and any requirementin this part is not possible; or

(2) Compliance with the State orlocal requirement is an obstacle to theaccomplishment and execution of anyrequirement in this part.

(b) This part shall not be construedto preempt provisions of State crimi-nal law that impose sanctions for reck-less conduct leading to actual loss oflife, injury, or damage to property,whether the provisions apply specifi-cally to transportation employees oremployers or to the general public.

§ 653.11 Other requirements imposedby an employer.

An employer may not impose re-quirements that are inconsistent with,contrary to, or frustrate the provisionsof this part.

§ 653.13 Starting date for drug testingprograms.

(a) Large employers. Each recipientoperating primarily in an urbanizedarea of 200,000 or more in population onMarch 17, 1994 shall implement the re-quirements of this part beginning onJanuary 1, 1995.

(b) Small employers. Each recipient op-erating primarily in a nonurbanizedarea or in an urbanized area of 200,000or less in population on March 17, 1994shall implement the requirements ofthis part beginning on January 1, 1996.

(c) An employer shall have an anti-drug program that conforms to thispart by January 1, 1996, or by the date

the employer begins operations, which-ever is later.


Subpart B—Program Requirements

§ 653.21 Requirement to establish ananti-drug program.

Each employer shall establish ananti-drug program consistent with therequirements of this part.

§ 653.23 Required elements of an anti-drug testing program.

An anti-drug program shall includethe following:

(a) A statement describing the em-ployer’s policy on prohibited drug usein the workplace, including the con-sequences associated with prohibiteddrug use. This policy statement shallinclude all of the elements specified in§ 653.25. Each employer shall dissemi-nate the policy consistent with theprovisions of § 653.27.

(b) An education and training pro-gram which meets the requirements of§ 653.29.

(c) A testing program, as described in§ 653.31 that meets the requirements ofthis part and part 40 of this title.

(d) Procedures for assessing the cov-ered employee who has a verified posi-tive drug test result as described in§ 653.37.

§ 653.25 Policy statement contents.The policy statement shall be adopt-

ed by the local governing board of theemployer or operator, be made avail-able to each covered employee, andshall include, at a minimum, detaileddiscussion of:–

(a) The identity of the person des-ignated by the employer to answer em-ployee questions about the anti-drugprogram.

(b) The categories of employees whoare subject to the provisions of thispart.

(c) Specific information concerningthe behavior that is prohibited by thispart.

(d) The specific circumstances underwhich a covered employee will be test-ed for prohibited drugs under the provi-sions of this part.


942

49 CFR Ch. VI (10–1–99 Edition)§ 653.27

(e) The procedures that will be usedto test for the presence of drugs, pro-tect the employee and the integrity ofthe drug testing process, safeguard thevalidity of the test results, and ensurethe test results are attributed to thecorrect covered employee.

(f) The requirement that a coveredemployee submit to drug testing ad-ministered in accordance with thispart.

(g) A description of the kind of be-havior that constitutes a refusal totake a drug test and a statement thatsuch a refusal constitutes a verifiedpositive drug test result.

(h) The consequences for a coveredemployee who has a verified positivedrug test result or refuses to submit toa drug test under this part, includingthe mandatory requirements that thecovered employee be removed imme-diately from his or her safety-sensitivefunction and be evaluated by a sub-stance abuse professional.

(i) If the employer implements ele-ments of an anti-drug program that arein addition to this part (See § 653.31),the employer shall give each coveredemployee specific information con-cerning which provisions are mandatedby this part and which are not.

§ 653.27 Requirement to disseminatepolicy.

Each employer shall provide writtennotice to every covered employee andto representatives of employee organi-zations of the employer’s anti-drugpolicies and procedures.

§ 653.29 Education and training pro-grams.

Each employer shall establish an em-ployee education and training programfor all covered employees, including:

(a) Education. The education compo-nent shall include display and distribu-tion to every covered employee of: in-formational material and a communityservice hot-line telephone number foremployee assistance, if available.

(b) Training—(1) Covered employees.Covered employees must receive atleast 60 minutes of training on the ef-fects and consequences of prohibiteddrug use on personal health, safety,and the work environment, and on the

signs and symptoms which may indi-cate prohibited drug use.

(2) Supervisors. Supervisors who maymake reasonable suspicion determina-tions shall receive at least 60 minutesof training on the physical, behavioral,and performance indicators of probabledrug use.

§ 653.31 Drug testing.(a) An employer shall establish a pro-

gram which provides for testing forprohibited drugs and drug metabolitesin the following circumstances: pre-employment, post-accident, reasonablesuspicion, random, and return to duty/follow-up, as described in detail in eachcase in subpart C of this part.

(b) When administering a drug test,an employer shall ensure that the fol-lowing drugs are tested for:

(1) Marijuana;(2) Cocaine;(3) Opiates;(4) Amphetamines; and(5) Phencyclidine.

§ 653.33 Notice requirement.Before performing a drug test under

this part, each employer shall notify acovered employee that the drug test isrequired by this part. No employershall falsely represent that a test is ad-ministered under this part.

§ 653.35 Action when employee has averified positive drug test result.

(a) As soon as practicable after re-ceiving notice from the medical reviewofficer (MRO) that an employee has averified positive drug test result, or ifan employee refuses to submit to adrug test, the employer shall requirethat a covered employee cease per-forming a safety-sensitive function.

(b) Before allowing the covered em-ployee to resume performing a safety-sensitive function, the employer shallensure that the covered employeemeets the requirements of this part forreturning to duty, including taking areturn to duty drug test with a verifiednegative result, as required by § 653.49.

§ 653.37 Referral, evaluation, andtreatment.

(a) A covered employee who has averified positive drug test result or re-fuses to submit to a drug test under


943


this part shall be advised by the em-ployer of the resources available to thecovered employee in evaluating and re-solving problems associated with pro-hibited drug use, including the names,addresses, and telephone numbers ofsubstance abuse professionals andcounseling and treatment programs.

(b)(1) The employer shall ensure thateach covered employee who has averified positive drug test result or re-fuses to take a drug test shall be evalu-ated by a substance abuse professionalwho shall determine whether the cov-ered employee is in need of assistancein resolving problems associated withprohibited drug use.

(2) Evaluation and rehabilitationmay be provided by the employer, by asubstance abuse professional undercontract with the employer, or by asubstance abuse professional not affili-ated with the employer. The choice ofsubstance abuse professional and as-signment of costs shall be made in ac-cordance with employer/employeeagreements and employer policies.

(3) The employer shall ensure that asubstance abuse professional who de-termines that a covered employee re-quires assistance in resolving problemswith prohibited drug use does not referthe employee to the substance abuseprofessional’s private practice fromwhich the substance abuse professionalreceives remuneration or to a person ororganization from which the substanceabuse professional has a financial in-terest. This paragraph does not pro-hibit a substance abuse professionalfrom referring an employee for assist-ance provided through—

(i) A public agency, such as a State,county, or municipality;

(ii) The employer or a person undercontract to provide treatment for pro-hibited drug use problems on behalf ofthe employer;

(iii) The sole source of therapeuti-cally appropriate treatment under theemployee’s health insurance program;or

(iv) The sole source of therapeuti-cally appropriate treatment reasonablyaccessible to the employee.

(c) An employer shall ensure that, be-fore returning to duty to perform asafety-sensitive function, a coveredemployee has complied with the refer-

ral and evaluation provisions of thispart and takes a return to duty drugtest with a verified negative resultunder § 653.49.

(d) The requirements of this sectiondo not apply to applicants.


Subpart C—Types of Drug Testing§ 653.41 Pre-employment testing.

(a) An employer may not hire an ap-plicant to perform a safety-sensitivefunction unless the applicant takes adrug test with a verified negative re-sult administered under this part.

(b) An employer may not transfer anemployee from a nonsafety-sensitivefunction to a safety-sensitive functionuntil the employee takes a drug testwith a verified negative result adminis-tered under this part.

(c) If an applicant or employee drugtest is canceled, the employer shall re-quire the employee or applicant totake another pre-employment drugtest.

§ 653.43 Reasonable suspicion testing.(a) An employer shall conduct a drug

test when the employer has reasonablesuspicion to believe that the coveredemployee has used a prohibited drug.

(b) An employer’s determination thatreasonable suspicion exists shall bebased on specific, contemporaneous,articulable observations concerningthe appearance, behavior, speech, orbody odors of the covered employee.The required observations must bemade by a supervisor who is trained indetecting the signs and symptoms ofdrug use.


§ 653.45 Post-accident testing.(a)(1) Fatal accidents. As soon as prac-

ticable following an accident involvingthe loss of human life, an employershall test each surviving covered em-ployee operating the mass transit vehi-cle at the time of the accident. Theemployer shall also test any other cov-ered employee whose performancecould have contributed to the accident,as determined by the employer using


944

49 CFR Ch. VI (10–1–99 Edition)§ 653.47

the best information available at thetime of the decision.

(2) Nonfatal accidents. (i) As soon aspracticable following an accident notinvolving the loss of human life, inwhich the mass transit vehicle in-volved is a bus, electric bus, van, orautomobile, the employer shall testeach covered employee operating themass transit vehicle at the time of theaccident unless the employer deter-mines, using the best informationavailable at the time of the decision,that the covered emplyee’s perform-ance can be completely discounted as acontributing factor to the accident.The employer shall also test any othercovered employee whose performancecould have contributed to the accident,as determined by the employer usingthe best information available at thetime of the decision.

(ii) As soon as practicable followingan accident not involving the loss ofhuman life, in which the mass transitvehicle involved is a rail car, trolleycar, trolley bus, or vessel, the employershall test each covered employee oper-ating the mass transit vehicle at thetime of the accident unless the em-ployer determines, using the best infor-mation available at the time of the de-cision, that the covered employee’sperformance can be completely dis-counted as a contributing factor to theaccident. The decision not to admin-ister a test under this paragraph shallbe based on the employer’s determina-tion, using the best available informa-tion at the time of the determination,that the employee’s performance couldnot have contributed to the accident.The employer shall also test any othercovered employee whose performancecould have contributed to the accident,as determined by the employer usingthe best information available at thetime of the decision.

(b) An employer shall ensure that acovered employee required to be testedunder this section is tested as soon aspracticable and within 32 hours of theaccident. A covered employee who issubject to post-accident testing whofails to remain readily available forsuch testing, including notifying theemployer or the employer representa-tive of his or her location if he or sheleaves the scene of the accident prior

to submission to such test, may bedeemed by the employer to have re-fused to submit to testing.

(c) Nothing in this section shall beconstrued to require the delay of nec-essary medical attention for the in-jured following an accident or to pro-hibit a covered employee from leavingthe scene of an accident for the periodnecessary to obtain assistance in re-sponding to the accident or to obtainnecessary emergency medical care.

(d) The results of a blood or urinetest for the use of prohibited drugs,conducted by Federal, State, or localofficials having independent authorityfor the test, shall be considered tomeet the requirements of this section,provided such tests conform to the ap-plicable Federal, State, or local testingrequirements, and that the test resultsare obtained by the employer.

[59 FR 7589, Feb. 15, 1994, as amended at 60FR 12297, Mar. 6, 1995; 60 FR 39620, Aug. 2,1995; 63 FR 67613, Dec. 8, 1998]

§ 653.47 Random testing.

(a) Except as provided in paragraphs(b) through (d) of this section, the min-imum annual percentage rate for ran-dom drug testing shall be 50 percent ofcovered employees.

(b) The Administrator’s decision toincrease or decrease the minimum an-nual percentage rate for random drugtesting is based on the reported posi-tive rate for the entire industry. All in-formation used for this determinationis drawn from the drug MIS reports re-quired by this part. In order to ensurereliability of the data, the Adminis-trator considers the quality and com-pleteness of the reported data, may ob-tain additional information or reportsfrom employers, and may make appro-priate modifications in calculating theindustry positive rate. Each year, theAdministrator will publish in the FED-ERAL REGISTER the minimum annualpercentage rate for random drug test-ing of covered employees. The newminimum annual percentage rate forrandom drug testing will be applicablestarting January 1 of the calendar yearfollowing publication.

(c) When the minimum annual per-centage rate for random drug testing is50 percent, the Administrator may


945


lower this rate to 25 percent of all cov-ered employees if the Administratordetermines that the data receivedunder the reporting requirements of§ 653.73 for two consecutive calendaryears indicate that the reported posi-tive rate is less than 1.0 percent. How-ever, after the initial two years of ran-dom testing by large transit operatorsand the initial first year of testing bysmall transit operators, the Adminis-trator may lower the rate the followingcalendar year, if the combined positivetesting rate is less than 1.0 percent,and if it would be in the interest ofsafety.

(d) When the minimum annual per-centage rate for random drug testing is25 percent, and the data received underthe reporting requirements of § 653.73for any calendar year indicate that thereported positive rate is equal to orgreater than 1.0 percent, the Adminis-trator will increase the minimum an-nual percentage rate for random drugtesting to 50 percent of all covered em-ployees.

(e) The selection of employees forrandom drug testing shall be made by ascientifically valid method, such as arandom number table or a computer-based random number generator that ismatched with employees’ Social Secu-rity numbers, payroll identificationnumbers, or other comparable identi-fying numbers. Under the selectionprocess used, each covered employeeshall have an equal chance of beingtested each time selections are made.

(f) The employer shall randomly se-lect a sufficient number of covered em-ployees for testing during each cal-endar year to equal an annual rate notless than the minimum annual percent-age rate for random drug testing deter-mined by the Administrator. If the em-ployer conducts random drug testingthrough a consortium, the number ofemployees to be tested may be cal-culated for each individual employer ormay be based on the total number ofcovered employees covered by the con-sortium who are subject to randomdrug testing at the same minimum an-nual percentage rate under this part orany DOT drug testing rule.

(g) Each employer shall ensure thatrandom drug tests conducted underthis part are unannounced and that the

dates for administering random testsare spread reasonably throughout thecalendar year.

(h) If a given covered employee issubject to random drug testing underthe drug testing rules of more than oneDOT agency for the same employer, theemployee shall be subject to randomdrug testing at the percentage rate es-tablished for the calendar year by theDOT agency regulating more than 50percent of the employee’s function.

(i) If an employer is required to con-duct random drug testing under thedrug testing rules of more than oneDOT agency, the employer may—

(1) Establish separate pools for ran-dom selection, with each pool con-taining the covered employees who aresubject to testing at the same requiredrate; or

(2) Randomly select such employeesfor testing at the highest percentagerate established for the calendar yearby any DOT agency to which the em-ployer is subject.

[59 FR 62230, Dec. 2, 1994]

§ 653.49 Return to duty testing.

(a) Return to duty. An employer shallensure that, before returning to dutyto perform a safety-sensitive function,each covered employee who has refusedto submit to a drug test or has averified positive drug test result—

(1) Has been evaluated by a substanceabuse professional to determine wheth-er the covered employee has properlyfollowed the recommendations for ac-tion by the substance abuse profes-sional, including participation in anyrehabilitation program;

(2) Has taken a return to duty drugtest with a verified negative result. If atest is canceled, the employer shall re-quire the employee to take another re-turn to duty drug test.

(3) A substance abuse professionalmay recommend that the employee besubject to a return to duty alcohol testwith a result indicating an alcohol con-centration of less than 0.02, to be con-ducted in accordance with 49 CFR part40.

(b) Marine employers. Marine employ-ers subject to U.S. Coast Guard chem-ical testing regulations shall ensurethat each covered employee who has a


946

49 CFR Ch. VI (10–1–99 Edition)§ 653.51

verified positive drug test result ad-ministered under this part is evaluatedby a Medical Review Officer.

§ 653.51 Follow-up testing.Each employer shall ensure that each

covered employee who returns to dutyafter a required evaluation made under§ 653.37 is subject to unannounced fol-low-up drug testing as provided for in§ 653.63(d). The employer may requirethe employee to take one or more fol-low-up alcohol tests, with a result indi-cating an alcohol concentration of lessthan 0.04, as directed by the SAP, to beperformed in accordance with 49 CFRpart 40.

Subpart D—Drug TestingProcedures

§ 653.61 Compliance with testing pro-cedures requirements.

The drug testing procedures of part40 of this title apply to employers cov-ered by this part, unless expressly pro-vided otherwise in this part.

§ 653.63 Substance abuse professional.(a) An employer’s anti-drug program

shall have available the services of adesignated substance abuse profes-sional.

(b) The substance abuse professionalshall determine whether a covered em-ployee who has refused to submit to adrug test or has a verified positive drugtest result is in need of assistance inresolving problems associated with pro-hibited drug use. The substance abuseprofessional then recommends a courseof action to the employee.

(c) The substance abuse professionalshall determine whether a covered em-ployee who has refused to submit to adrug test or has a verified positive drugtest result has properly followed theSAP’s recommendations.

(d) The substance abuse professionalshall determine the frequency and du-ration of follow-up testing for a cov-ered employee. Such employee shall berequired to take a minimum of six fol-low-up drug tests with verified nega-tive results during the first 12 monthsafter returning to duty. After that pe-riod of time, the substance abuse pro-fessional may recommend to the em-ployer the frequency and duration of

follow-up drug testing, provided thatthe follow-up testing period ends 60months after the employee returns toduty. In addition, follow-up testingmay include testing for alcohol, as di-rected by the substance abuse profes-sional, to be performed in accordancewith 49 CFR part 40.

§ 653.65 Supervisor acting as collectionsite person.

An employer shall not permit a di-rect supervisor of an employee to serveas the collection site person for a drugtest of the employee.

[59 FR 7589, Feb. 15, 1994. Redesignated at 60FR 12297, Mar. 6, 1995]

Subpart E—AdministrativeRequirements

§ 653.71 Retention of records.(a) General requirement. An employer

shall maintain records of its anti-drugprogram as provided in this section.The records shall be maintained in asecure location with controlled access.

(b) Period of retention. In determiningcompliance with the retention periodrequirement, each record shall bemaintained for the specified period oftime, measured from the date of thedocument’s or data’s creation. Eachemployer shall maintain the records inaccordance with the following sched-ule:

(1) Five years: Records of covered em-ployee verified positive drug test re-sults, documentation of refusals totake required drug tests, and coveredemployee referrals to the SAP, andcopies of annual MIS reports submittedto FTA.

(2) Two years: Records related to thecollection process and employee train-ing.

(3) One year: Records of negative drugtest results.

(c) Types of records. The followingspecific records must be maintained.

(1) Records related to the collectionprocess:

(i) Collection logbooks, if used.(ii) Documents relating to the ran-

dom selection process.(iii) Documents generated in connec-

tion with decisions to administer rea-sonable suspicion drug tests.


947


(iv) Documents generated in connec-tion with decisions on post-accidentdrug testing.

(v) MRO documents verifying exist-ence of a medical explanation of the in-ability of a covered employee to pro-vide an adequate urine sample.

(2) Records related to test results:(i) The employer’s copy of the cus-

tody and control form.(ii) Documents related to the refusal

of any covered employee to submit to adrug test required by this part.

(iii) Documents presented by a cov-ered employee to dispute the result ofa drug test administered under thispart.

(3) Records related to referral and re-turn to duty and follow-up testing:

(i) Records pertaining to a deter-mination by a substance abuse profes-sional concerning a covered employee’sneed for referral for assistance in re-solving problems associated with druguse.

(ii) Records concerning a covered em-ployee’s entry into and completion ofthe program of treatment rec-ommended by the substance abuse pro-fessional.

(4) Records related to employeetraining:

(i) Training materials on drug useawareness, including a copy of the em-ployer’s policy on prohibited drug use.

(ii) Names of covered employees at-tending training on prohibited drug useand the dates and times of such train-ing.

(iii) Documentation of training pro-vided to supervisors for the purpose ofqualifying the supervisors to make adetermination concerning the need fordrug testing based on reasonable sus-picion.

(iv) Certification that any trainingconducted under this part complieswith the requirements for such train-ing.

(5) Copies of annual MIS reports sub-mitted to FTA.

§ 653.73 Reporting of results in a man-agement information system.

(a) Each recipient shall submit toFTA’s Office of Safety and Security byMarch 15 of each year a report coveringthe previous calendar year (January 1through December 31), which summa-

rizes the results of its anti-drug pro-gram.

(b) Each recipient shall be respon-sible for ensuring the accuracy andtimeliness of each report submitted byan employer, consortium or joint en-terprise or by a third party service pro-vider acting on the employer’s behalf.

(c) Each report that contains infor-mation on verified positive drug testresults shall be submitted on the FTADrug Testing Management InformationSystem (MIS) Data Collection Formand shall include the following infor-mational elements:

(1) Number of FTA covered employ-ees by employee category.

(2) Number of covered employees sub-ject to testing under the anti-drug reg-ulations of the United States CoastGuard.

(3) Number of specimens collected bytype of test (i.e., pre-employment, peri-odic, random, etc.) and employee cat-egory.

(4) Number of positives verified by aMedical Review Officer (MRO) by typeof test, type of drug, and employee cat-egory.

(5) Number of negatives verified by aMRO by type of test and employee cat-egory.

(6) Number of persons denied a posi-tion as a covered employee following averified positive drug test.

(7) Number of covered employeesverified positive by an MRO or who re-fused to submit to a drug test, whowere returned to duty in covered posi-tions during the reporting period (hav-ing complied with the recommenda-tions of a substance abuse professionalas described in § 653.37).

(8) Number of employees with testsverified positive by a MRO for multipledrugs.

(9) Number of covered employees whowere administered alcohol and drugtests at the same time, with both averified positive drug test result and analcohol test result indicating an alco-hol concentration of 0.04 or greater.

(10) Number of covered employeeswho refused to submit to a randomdrug test required under this part.

(11) Number of covered employeeswho refused to submit to a non-randomdrug test required under this part.


948

49 CFR Ch. VI (10–1–99 Edition)§ 653.75

(12) Number of covered employeesand supervisors who received trainingduring the reporting period.

(13) Number of fatal and nonfatal ac-cidents which resulted in a verifiedpositive post-accident drug test.

(14) Number of fatalities resultingfrom accidents which resulted in averified positive post-accident drugtest.

(15) Identification of FTA fundingsource(s).

(d) If all drug test results were nega-tive during the reporting period, theemployer must use the ‘‘EZ form’’ (ap-pendix C). It shall contain:

(1) Number of FTA covered employ-ees.

(2) Number of covered employees sub-ject to testing under the anti-drug reg-ulation of the United States CoastGuard.

(3) Number of specimens collectedand verified negative by type of testand employee category.

(4) Number of covered employeesverified positive by an MRO or who re-fused to submit to a drug test, whowere returned to duty in covered posi-tions during the reporting period (hav-ing complied with the recommenda-tions of a substance abuse professionalas described in § 653.37).

(5) Number of covered employees whorefused to submit to a random drugtest under this part and how many ofthose were random test refusals.

(6) Number of covered employees whorefused to submit to a non-randomdrug test required under this part.

(7) Number of covered employees andsupervisors who received training dur-ing the reporting period.


§ 653.75 Access to facilities andrecords.

(a) Except as required by law, or ex-pressly authorized or required in thissection, no employer may release infor-mation pertaining to a covered em-ployee that is contained in records re-quired to be maintained by § 653.71.

(b) A covered employee is entitled,upon written request, to obtain copiesof any records pertaining to the cov-ered employee’s use of prohibiteddrugs, including any records pertaining

to his or her drug tests. The employershall provide promptly the records re-quested by the employee. Access to acovered employee’s records shall not becontingent upon payment for recordsother than those specifically requested.

(c) An employer shall permit accessto all facilities utilized in complyingwith the requirements of this part tothe Secretary of Transportation or anyDOT agency with regulatory authorityover the employer or any of its employ-ees or to a State oversight agency au-thorized to oversee rail fixed guidewaysystems.

(d) An employer shall disclose datafor its drug testing program and anyother information pertaining to theemployer’s anti-drug program requiredto be maintained by this part, when re-quested by the Secretary of Transpor-tation or any DOT agency with regu-latory authority over the employer orcovered employee or to a State over-sight agency authorized to oversee railfixed guideway systems.

(e) When requested by the NationalTransportation Safety Board as part ofan accident investigation, employersshall disclose information related tothe employer’s administration of adrug test following the accident underinvestigation.

(f) Records shall be made available toa subsequent employer upon receipt ofwritten request from the covered em-ployee. Subsequent disclosure by theemployer is permitted only as ex-pressly authorized by the terms of thecovered employee’s request.

(g) An employer may disclose infor-mation required to be maintainedunder this part pertaining to a coveredemployee to the employee or the deci-sionmaker in a lawsuit, grievance, orother proceeding initiated by or on be-half of the individual, and arising fromthe results of a drug test administeredunder this part (including, but not lim-ited to, a worker’s compensation, un-employment compensation, or otherproceeding relating to a benefit soughtby the covered employee.)

(h) An employer shall release infor-mation regarding a covered employee’srecord as directed by the specific, writ-ten consent of the employee author-izing release of the information to anidentified person.


949

Federal Transit Admin., DOT Pt. 653, App. B

Subpart F—Certifying Compliance§ 653.81 Compliance a condition of

FTA financial assistance.(a) General. A recipient may not be

eligible for Federal financial assistanceunder section 3, 9, or 18 of the FederalTransit Act, as amended, or under sec-tion 103(e)(4) of title 23 of the UnitedStates Code if a recipient fails to es-tablish and implement an anti-drugprogram as required by this part. Fail-ure to certify compliance with theserequirements, as specified in § 653.83,will result in the suspension of a grant-ee’s eligibility for Federal funding.

(b) Criminal violation. A recipient issubject to criminal sanctions and finesfor false statements or misrepresenta-tions under section 1001 of title 18 ofthe United States Code.

(c) State’s role. Each State shall cer-tify compliance on behalf of its section3, 9 or 18 subrecipients, as applicable,whose grant the State administers. Inso certifying, the State shall ensurethat each subrecipient is complyingwith the requirements of this part. A

section 3, 9 or 18 subrecipient, throughthe administering State, is subject tosuspension of funding from the State ifsuch subrecipient is not in compliancewith this part.

§ 653.83 Requirement to certify compli-ance.

(a) A recipient of FTA financial as-sistance shall certify annually to theapplicable FTA Regional Office compli-ance with the requirements of thispart, including the training require-ments. Large operators shall certifycompliance initially by January 1, 1995.Small operators and States shall cer-tify compliance initially by January 1,1996.

(b) A certification must be author-ized by the organization’s governingboard or other authorizing official, andmust be signed by a party specificallyauthorized to do so. A certificationmust comply with the applicable sam-ple certification provided in appendixA to this part.

APPENDIX A TO PART 653 [RESERVED]


950

49 CFR Ch. VI (10–1–99 Edition)Pt. 653, App. B


951



952



953



954



955



956



957



958



959



960



961

Federal Transit Admin., DOT Pt. 653, App. C


962

49 CFR Ch. VI (10–1–99 Edition)Pt. 653, App. C


963



964



965


PART 654—PREVENTION OF ALCO-HOL MISUSE IN TRANSIT OPER-ATIONS

Subpart A—General

Sec.654.1 Purpose.654.3 Applicability.654.5 Alcohol testing procedures.654.7 Definitions.654.9 Preemption of State and local laws.654.11 Other requirements imposed by em-

ployers.654.13 Requirement for notice.654.15 Starting date for alcohol testing pro-

grams.

Subpart B—Prohibitions

654.21 Alcohol concentration.654.23 On-duty use.654.25 Pre-duty use.654.27 Use following an accident.654.29 Refusal to submit to a required alco-

hol test.

Subpart C—Tests Required

654.31 Pre-employment testing.654.33 Post-accident testing.654.35 Random testing.654.37 Reasonable suspicion testing.654.39 Return to duty testing.654.41 Follow-up testing.654.43 Retesting of covered employees with

an alcohol concentration of 0.02 or great-er but less than 0.04.

654.45 Supervisor acting as breath alcoholtechnician.

Subpart D—Administrative Requirements

654.51 Retention of records.654.53 Reporting of results in a management

information system.654.55 Access to facilities and records.

Subpart E—Consequences for EmployeesEngaging In Alcohol-related Conduct

654.61 Removal from safety-sensitive func-tion.

654.63 Required evaluation and testing.654.65 Other alcohol-related conduct.

Subpart F—Alcohol Misuse Information,Training, and Referral

654.71 Employer obligation to promulgate apolicy on the misuse of alcohol.

654.73 Training for supervisors.654.75 Referral, evaluation, and treatment.

Subpart G—Compliance

654.81 Compliance a condition of FTA finan-cial assistance.

654.83 Requirement to certify compliance.

APPENDIX A TO PART 654—[RESERVED]APPENDIX B TO PART 654—ALCOHOL TESTING

MANAGEMENT INFORMATION SYSTEM (MIS)DATA COLLECTION FORM.

APPENDIX C TO PART 654—ALCOHOL TESTINGMANAGEMENT INFORMATION SYSTEM (MIS)‘‘EZ’’ DATA COLLECTION FORM.


SOURCE: At 59 FR 7549, Feb. 15, 1994, unlessotherwise noted.

Subpart A—General

654.1 Purpose.

The purpose of this part is to estab-lish programs designed to help preventaccidents and injuries resulting fromthe misuse of alcohol by employeeswho perform safety-sensitive functionsfor employers receiving assistancefrom the Federal Transit Administra-tion (FTA).

654.3 Applicability.

(a) Except as specifically excluded inparagraph (b) of this section, this partapplies to a recipient under—

(1) Section 3, 9, or 18 of the FederalTransit Act, as amended (FT Act); or

(2) Section 103(e)(4) of title 23 of theUnited States Code.

(b) A recipient operating a railroadregulated by the Federal Railroad Ad-ministration (FRA) shall follow 49 CFRpart 219 and 382, as appropriate, and§ 654.83 of this part for its railroad oper-ations, and this part for its non-rail-road operations, if any.

(NOTE: For recipients who operate marinevessels, see also United States Coast Guardregulations at 33 CFR part 95 and 46 CFRparts 4, 5, and 16.)


§ 654.5 Alcohol testing procedures.

Each employer shall ensure that allalcohol testing conducted under thispart complies with the procedures setforth in part 40 of this title. The provi-sions of part 40 that address alcoholtesting are made applicable to employ-ers by this part.


966

49 CFR Ch. VI (10–1–99 Edition)§ 654.7


As used in this part—Accident means an occurrence associ-

ated with the operation of a vehicle, ifas a result—

(1) An individual dies;(2) An individual suffers a bodily in-

jury and immediately receives medicaltreatment away from the scene of theaccident;

(3) With respect to an occurrence inwhich the mass transit vehicle in-volved is a bus, electric bus, van, orautomobile, one or more vehicles in-curs disabling damage as the result ofthe occurrence and is transported awayfrom the scene by a tow truck or othervehicle;

(4) With respect to an occurrence inwhich the mass transit vehicle in-volved is a rail car, trolley car, trolleybus, or vessel, the mass transit vehicleis removed from revenue service.

Administrator means the Adminis-trator of the Federal Transit Adminis-tration or the Administrator’s des-ignee.

Alcohol means the intoxicating agentin beverage alcohol, ethyl alcohol orother low molecular weight alcoholsincluding methyl or isopropyl alcohol.

Alcohol concentration means the alco-hol in a volume of breath expressed interms of grams of alcohol per 210 litersof breath as indicated by an evidentialbreath test under this part.

Alcohol use means the consumption ofany beverage, mixture, or preparation,including any medication, containingalcohol.

Certification means a recipient’s writ-ten statement, authorized by the orga-nization’s governing board or other au-thorizing official, that the recipienthas complied with the provisions ofthis part. (See § 654.87 for requirementson certification.)

Confirmation test means a second test,following a screening test with a resultof 0.02 or greater, that provides quan-titative data of alcohol concentration.

Consortium means an entity, includ-ing a group or association of employ-ers, operators, recipients, subrecipi-ents, or contractors, which provides al-cohol testing as required by this part,or other DOT alcohol testing rule, andwhich acts on behalf of the employer.

Contractor means a person or organi-zation that provides a service for a re-cipient, subrecipient, employer, or op-erator consistent with a specific under-standing or arrangement. The under-standing can be a written contract oran informal arrangement that reflectsan ongoing relationship between theparties.

Covered employee means a person, in-cluding an applicant or transferee, whoperforms a safety-sensitive function foran entity subject to this part; however,a volunteer is covered only if operatinga vehicle designed to transport sixteenor more passengers, including the driv-er.

Disabling damage means damagewhich precludes departure of a motorvehicle from the scene of the accidentin its usual manner in daylight aftersimple repairs.

(1) Inclusion. Damage to motor vehi-cles that could have been driven, butwould have been further damaged if sodriven.

(2) Exclusions.(i) Damage which can be remedied

temporarily at the scene of the acci-dent without special tools or parts.

(ii) Tire disablement without otherdamage even if no spare tire is avail-able.

(iii) Headlamp or taillight damage.(iv) Damage to turn signals, horn, or

windshield wipers which makes theminoperative.

DOT means the United States De-partment of Transportation.

DOT agency means an agency (or ‘‘op-erating administration’’) of the UnitedStates Department of Transportationadministering regulations requiring al-cohol testing (14 CFR part 61, 63, 65,121, and 135; 49 CFR parts 199, 219, 382,and 654) in accordance with part 40 ofthis title.

Employer means a recipient or otherentity that provides mass transpor-tation service or which performs a safe-ty-sensitive function for such recipientor other entity. This term includessubrecipients, operators, and contrac-tors.

FTA means the Federal Transit Ad-ministration, an agency of the U.S. De-partment of Transportation.

Large operator means a recipient orsubrecipient primarily operating in an


967


urbanized area of 200,000 or more inpopulation.

Performing (a safety-sensitive func-tion) means a covered employee is con-sidered to be performing a safety-sen-sitive function and includes any periodin which he or she is actually per-forming, ready to perform, or imme-diately available to perform such func-tions.

Railroad means all forms of non-high-way ground transportation that run onrails or electromagnetic guideways, in-cluding (1) commuter or other short-haul rail passenger service in a metro-politan or suburban area, as well asany commuter rail service which wasoperated by the Consolidated Rail Cor-poration as of January 1, 1979, and (2)high speed ground transportation sys-tems that connect metropolitan areas,without regard to whether they usenew technologies not associated withtraditional railroads. Such term doesnot include rapid transit operationswithin an urban area that are not con-nected to the general railroad systemof transportation.

Recipient means an entity receivingFederal financial assistance under sec-tion 3, 9, or 18, of the FT Act, or undersection 103(e)(4) of title 23 of the UnitedStates Code.

Refuse to submit (to an alcohol test)means that a covered employee fails toprovide adequate breath for testingwithout a valid medical explanationafter he or she has received notice ofthe requirement to be tested in accord-ance with the provisions of this part,or engages in conduct that clearly ob-structs the testing process.

Safety-sensitive function means any ofthe following duties:

(1) Operating a revenue service vehi-cle, including when not in revenueservice;

(2) Operating a nonrevenue servicevehicle, when required to be operatedby a holder of a Commercial Driver’sLicense;

(3) Controlling dispatch or movementof a revenue service vehicle;

(4) Maintaining (including repairs,overhaul, and rebuilding) a revenueservice vehicle or equipment used inrevenue service, unless the recipientreceives funding under 49 U.S.C. 5309, isin an area less than 50,000 in population

and contracts out such services, orfunding under 49 U.S.C. 5311 and con-tracts out such services.

(5) Carrying a firearm for securitypurposes.

Screening test means an analyticalprocedure to determine whether a cov-ered employee may have a prohibitedconcentration of alcohol in his or hersystem.

Small operator means a recipient orsubrecipient primarily operating in anonurbanized area or in an urbanizedarea f less than 200,000 in population.

Vehicle means a bus, electric bus,van, automobile, rail car, trolley car,trolley bus, or vessel. A ‘‘mass transitvehicle’’ is a vehicle used for masstransportation or for ancillary serv-ices.

Violation rate means the number ofcovered employees (as reported under§ 654.53 of this part) found during ran-dom tests given under this part to havean alcohol concentration of .04 orgreater, plus the number of employeeswho refuse a random test required bythis part, divided by the total reportednumber of employees in the industrygiven random alcohol tests under thispart plus the total reported number ofemployees in the industry who refuse arandom test required by this part.

[59 FR 7549, Feb. 15, 1994, as amended at 60FR 12299, Mar. 6, 1995; 60 FR 39620, Aug. 2,1995; 61 FR 37224, July 17, 1996; 64 FR 426, Jan.5, 1999]

§ 654.9 Preemption of State and locallaws.

(a) Except as provided in paragraph(b) of this section, this part preemptsany State or local law, rule, regula-tion, or order, to the extent that:

(1) Compliance with both the State orlocal requirement and any requirementin this part is not possible; or

(2) Compliance with the State orlocal requirement is an obstacle to theaccomplishment and execution of anyrequirement in this part.

(b) This part shall not be construedto preempt provisions of State crimi-nal law that impose sanctions for reck-less conduct leading to actual loss oflife, injury, or damage to property,whether the provisions apply specifi-cally to transportation employees oremployers or to the general public.


968

49 CFR Ch. VI (10–1–99 Edition)§ 654.11

§ 654.11 Other requirements imposedby employers.

Except as expressly provided in thispart, nothing in this part shall be con-strued to affect the authority of em-ployers, or the rights of employees,with respect to the use or possession ofalcohol, including authority and rightswith respect to alcohol testing and re-habilitation.

§ 654.13 Requirement for notice.

Before performing an alcohol testunder this part, each employer shallnotify a covered employee that the al-cohol test is required by this part. Noemployer shall falsely represent that atest is administered under this part.

§ 654.15 Starting date for alcohol test-ing programs.

(a) Large employers. Each recipientoperating primarily in an urbanizedarea of 200,000 or more in population onMarch 17, 1994 shall implement the re-quirements of this part beginning onJanuary 1, 1995.

(b) Small employers. Each recipient op-erating primarily in a nonurbanizedarea or in an urbanized area of 200,000or less in population on March 17, 1994shall implement the requirements ofthis part beginning on January 1, 1996.

(c) An employer shall have an alcoholmisuse program that conforms to thispart by January 1, 1996, or by the datethe employer begins operations, which-ever is later.


Subpart B—Prohibitions

§ 654.21 Alcohol concentration.

Each employer shall prohibit a cov-ered employee from reporting for dutyor remaining on duty requiring the per-formance of safety-sensitive functionswhile having an alcohol concentrationof 0.04 or greater. No employer havingactual knowledge that a covered em-ployee has an alcohol concentration of0.04 or greater shall permit the em-ployee to perform or continue to per-form safety-sensitive functions.

§ 654.23 On-duty use.Each employer shall prohibit a cov-

ered employee from using alcohol whileperforming safety-sensitive functions.No employer having actual knowledgethat a covered employee is using alco-hol while performing safety-sensitivefunctions shall permit the employee toperform or continue to perform safety-sensitive functions.

§ 654.25 Pre-duty use.(a) General. Each employer shall pro-

hibit a covered employee from using al-cohol within 4 hours prior to per-forming safety-sensitive functions. Noemployer having actual knowledgethat a covered employee has used alco-hol within four hours of performing asafety-sensitive function shall permitthe employee to perform or continue toperform safety-sensitive functions.

(b) On-call employees. An employershall prohibit the consumption of alco-hol for the specified on-call hours ofeach covered employee who is on-call.The procedure shall include:

(1) The opportunity for the coveredemployee to acknowledge the use of al-cohol at the time he or she is called toreport to duty and the inability to per-form his or her safety-sensitive func-tion.

(2) The requirement that the coveredemployee take an alcohol test, if thecovered employee has acknowledgedthe use of alcohol, but claims ability toperform his or her safety-sensitivefunction.

§ 654.27 Use following an accident.Each employer shall prohibit any

covered employee required to take apost-accident alcohol test under § 654.33from alcohol use for eight hours fol-lowing the accident or until he or sheundergoes a post-accident alcohol test,whichever occurs first.

§ 654.29 Refusal to submit to a re-quired alcohol test.

Each employer shall require a cov-ered employee to submit to a post-acci-dent alcohol test required under§ 654.33, a random alcohol test requiredunder § 654.35, a reasonable suspicionalcohol test required under § 654.37, or afollow-up alcohol test required under§ 654.41. No employer shall permit an


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employee who refuses to submit tosuch a test to perform or continue toperform safety-sensitive functions.

Subpart C—Tests Required§ 654.31 Pre-employment testing.

(a) Prior to the first time a coveredemployee performs safety-sensitivefunctions for an employer, the em-ployer shall ensure that the employeeundergoes testing for alcohol. No em-ployer shall allow a covered employeeto perform safety-sensitive functions,unless the employee has been adminis-tered an alcohol test with a result indi-cating an alcohol concentration lessthan 0.04. If a pre-employment test re-sult under this section indicates an al-cohol concentration of 0.02 or greaterbut less than 0.04, the provisions of§ 654.65 shall apply.

(b) An employer may elect not to ad-minister an alcohol test required byparagraph (a) of this section, if:

(1) The employee has undergone analcohol test required by this part orthe alcohol misuse rule of another DOTagency under part 40 of this title with-in the previous six months, with a re-sult indicating an alcohol concentra-tion less than 0.04; and

(2) The employer ensures that noprior employer of the covered employeeof whom the employer has knowledgehas records of a violation of this sub-part or the alcohol misuse rule of an-other DOT agency within the previoussix months.

EFFECTIVE DATE NOTE: At 60 FR 24766, May10, 1995, § 654.31 was suspended indefinitely,effective May 10, 1995.

§ 654.33 Post-accident testing.(a)(1) Fatal accidents. As soon as prac-

ticable following an accident involvingthe loss of human life, an employershall test each surviving covered em-ployee operating the mass transit vehi-cle at the time of the accident. Theemployer shall also test any other cov-ered employee whose performancecould have contributed to the accident,as determined by the employer usingthe best information available at thetime of the decision.

(2) Nonfatal accidents. (i) As soon aspracticable following an accident notinvolving the loss of human life, in

which the mass transit vehicle in-volved is a bus, electric bus, van, orautomobile, the employer shall testeach covered employee operating themass transit vehicle at the time of theaccident unless the employer deter-mines, using the best informationavailable at the time of the decision,that the covered employee’s perform-ance can be completely discounted as acontributing factor to the accicent.The employer shall also test any othercovered employee whose performancecould have contributed to the accident,as determined by the employer usingthe best information available at thetime of the decision.

(ii) As soon as practicable followingan accident not involving the loss ofhuman life, in which the mass transitvehicle involved is a rail car, trolleycar, trolley bus, or vessel, the employershall test each covered employee oper-ating the mass transit vehicle at thetime of the accident unless the em-ployer determines, using the best infor-mation available at the time of the de-cision, that the covered employee’sperformance can be completely dis-counted as a contributing factor to theaccident. The decision not to admin-ister a test under this paragraph shallbe based on the employer’s determina-tion, using the best available informa-tion at the time of the determination,that the employee’s performance couldnot have contributed to the accident.The employer shall also test any othercovered employee whose performancecould have contributed to the accident,as determined by the employer usingthe best information available at thetime of the decision.

(b)(1) If a test required by this sec-tion is not administered within twohours following the accident, the em-ployer shall prepare and maintain onfile a record stating the reasons thetest was not promptly administered. Ifa test required by this paragraph is notadministered within eight hours fol-lowing the accident, the employer shallcease attempts to administer an alco-hol test and shall maintain the samerecord. Records shall be submitted tothe FTA upon request of the Adminis-trator.

(2) For the years stated in this para-graph, the employer shall submit to


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49 CFR Ch. VI (10–1–99 Edition)§ 654.35

the FTA each record of a test requiredby this section that is not completedwithin 8 hours. The employer’s recordsof tests that could not be completedwithin 8 hours shall be submitted tothe FTA by March 15, 1996; March 15,1997; and March 15, 1998; for calendaryears 1995, 1996, and 1997, respectively.Employers shall append these recordsto their MIS submissions. Each recordshall include the following informa-tion:

(i) Type of test (reasonable suspicion/post-accident);

(ii) Triggering event (including date,time, and location);

(iii) Employee category (do not in-clude employee name or other identi-fying information);

(iv) Reason(s) test could not be com-pleted within 8 hours; and

(v) If blood alcohol testing couldhave been completed within eighthours, the name, address, and tele-phone number of the testing site whereblood testing could have occurred.

(c) A covered employee who is sub-ject to post-accident testing who failsto remain readily available for suchtesting, including notifying the em-ployer or employer representative ofhis or her location if he or she leavesthe scene of the accident prior to sub-mission to such test, may be deemed bythe employer to have refused to submitto testing. Nothing in this section shallbe construed to require the delay ofnecessary medical attention for injuredpeople following an accident or to pro-hibit a covered employee from leavingthe scene of an accident for the periodnecessary to obtain assistance in re-sponding to the accident or to obtainnecessary emergency medical care.

(d) The results of a blood or breathtest for the misuse of alcohol, con-ducted by Federal, State, or local offi-cials having independent authority forthe test, shall be considered to meetthe requirements to this section, pro-vided such tests conform to the appli-cable Federal, State, or local testingrequirements, and that the results ofthe tests are obtained by the employer.

[59 FR 7549, Feb. 15, 1994, as amended at 59FR 62240, Dec. 2, 1994; 60 FR 12300, Mar. 6,1995; 60 FR 39620, Aug. 2, 1995; 63 FR 67613,Dec. 8, 1998]

§ 654.35 Random testing.(a) Except as provided in paragraphs

(b) through (d) of this section, the min-imum annual percentage rate for ran-dom alcohol testing shall be 25 percentof covered employees.

(b) The Administrator’s decision toincrease or decrease the minimum an-nual percentage rate for random alco-hol testing is based on the reportedviolation rate for the entire industry.All information used for this deter-mination is drawn from the alcoholMIS reports required by § 654.53. Inorder to ensure reliability of the data,the Administrator considers the qual-ity and completeness of the reporteddata, may obtain additional informa-tion or reports from employers, andmay make appropriate modificationsin calculating the industry violationrate. Each year, the Administrator willpublish in the FEDERAL REGISTER theminimum annual percentage rate forrandom alcohol testing of covered em-ployees. The new minimum annual per-centage rate for random alcohol test-ing will be applicable starting January1 of the calendar year following publi-cation.

(c)(1) When the minimum annual per-centage rate for random alcohol test-ing is 25 percent or more, the Adminis-trator may lower this rate to 10 per-cent of all covered employees if the Ad-ministrator determines that the datareceived under the reporting require-ments of § 654.53 for two consecutivecalendar years indicate that the viola-tion rate is less than 0.5 percent. How-ever, after the initial two years of test-ing by large transit operators and theinitial first year of testing by smalltransit operators, the Administratormay lower the rate the following cal-endar year, if the combined violationrate is less than 0.5 percent and is inthe interests of safety.

(2) When the minimum annual per-centage rate for random alcohol test-ing is 50 percent, the Administratormay lower this rate to 25 percent of allcovered employees if the Adminis-trator determines that the data re-ceived under the reporting require-ments of § 654.53 for two consecutivecalendar years indicate that the viola-tion rate is less than 1.0 percent butequal to or greater than 0.5 percent.


971


(d)(1) When the minimum annual per-centage rate for random alcohol test-ing is 10 percent, and the data receivedunder the reporting requirements of§ 654.53 for that calendar year indicatethat the violation rate is equal to orgreater than 0.5 percent, but less than1.0 percent, the Administrator will in-crease the minimum annual percentagerate for random alcohol testing to 25percent of all covered employees.

(2) When the minimum annual per-centage rate for random alcohol test-ing is 25 percent or less, and the datareceived under the reporting require-ments of § 654.53 for that calendar yearindicate that the violation rate isequal to or greater than 1.0 percent,the Administrator will increase theminimum annual percentage rate forrandom alcohol testing to 50 percent ofall covered employees.

(e) The selection of employees forrandom alcohol testing shall be madeby a scientifically valid method, suchas a random number table or a com-puter-based random number generatorthat is matched with employees’ SocialSecurity numbers, payroll identifica-tion numbers, or other comparableidentifying numbers. Under the selec-tion process used, each covered em-ployee shall have an equal chance ofbeing tested each time selections aremade.

(f) The employer shall randomly se-lect a sufficient number of covered em-ployees for testing during each cal-endar year to equal an annual rate notless than the minimum annual percent-age rate for random alcohol testing de-termined by the Administrator. If theemployer conducts random alcoholtesting through a consortium, thenumber of employees to be tested maybe calculated for each individual em-ployer or may be based on the totalnumber of covered employees coveredby the consortium who are subject torandom alcohol testing at the sameminimum annual percentage rateunder this part or any DOT alcoholtesting rule.

(g) Each employer shall ensure thatrandom alcohol tests conducted underthis part are unannounced and that thedates for administering random testsare spread reasonably throughout thecalendar year.

(h) Each employer shall require thateach covered employee who is notifiedof selection for random alcohol testingproceeds to the test site immediately;provided, however, that if the employeeis performing a safety-sensitive func-tion at the time of the notification, theemployer shall instead ensure that theemployee ceases to perform the safety-sensitive function and proceeds to thetesting site as soon as possible.

(i) A covered employee shall only berandomly tested while the employee isperforming safety-sensitive functions;just before the employee is to performsafety-sensitive functions; or just afterthe employee has ceased performingsuch functions.

(j) If a given covered employee is sub-ject to random alcohol testing underthe alcohol testing rules of more thanone DOT agency for the same em-ployer, the covered employee shall besubject to random alcohol testing atthe minimum annual percentage rateestablished for the calendar year bythe DOT agency regulating more than50 percent of the covered employee’sfunction.

(k) If an employer is required to con-duct random alcohol testing under thealcohol testing rules of more than oneDOT agency, the employer may—

(1) Establish separate pools for ran-dom selection, with each pool con-taining the DOT-covered employeeswho are subject to testing at the samerequired minimum annual percentagerate; or

(2) Randomly select such employeesfor testing at the highest minimum an-nual percentage rate established forthe calendar year by any DOT agencyto which the employer is subject.


§ 654.37 Reasonable suspicion testing.

(a) An employer shall require a cov-ered employee to submit to an alcoholtest when the employer has reasonablesuspicion to believe that the employeehas violated the prohibitions in thispart.

(b) The employer’s determinationthat reasonable suspicion exists to re-quire the covered employee to undergo


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49 CFR Ch. VI (10–1–99 Edition)§ 654.39

an alcohol test shall be based on spe-cific, contemporaneous, articulable ob-servations concerning the appearance,behavior, speech or body odors of theemployee. The required observationsshall be made by a supervisor who istrained in detecting the symptoms ofalcohol misuse. The supervisor whomakes the determination that reason-able suspicion exists shall not conductthe breath alcohol test on that em-ployee.

(c) Alcohol testing is authorized bythis section nly if the observations re-quired by paragraph (b) of this sectionare made during, just preceding, or justafter the period of the work day thatthe covered employee is required to bein compliance with this part. An em-ployer may direct a covered employeeto undergo reasonable suspicion testingfor alcohol only while the employee isperforming safety-sensitive functions;just before the employee is to performsafety-sensitive functions; or just afterthe employee has ceased performingsuch functions.

(d)(1) If a test required by this sec-tion is not administered within twohours following the determinationunder paragraph (b) of this section, theemployer shall prepare and maintainon file a record stating the reasons thetest was not promptly administered. Ifa test required by this section is notadministered within eight hours fol-lowing the determination under para-graph (b) of this section, the employershall cease attempts to administer analcohol test and shall state in therecord the reasons for not admin-istering the test.

(2) For the years stated in this para-graph, the employer shall submit tothe FTA each record of a test requiredby this section that is not completedwithin 8 hours. The employer’s recordsof tests that could not be completedwithin 8 hours shall be submitted tothe FTA by March 15, 1996; March 15,1997; and March 15, 1998; for calendaryears 1995, 1996, and 1997, respectively.Employers shall append these recordsto their MIS submissions. Each recordshall include the following informa-tion:

(i) Type of test (reasonable suspicion/post-accident);

(ii) Triggering event (including date,time, and location);

(iii) Employee category (do not in-clude employee name or other identi-fying information);

(iv) Reason(s) test could not be com-pleted within 8 hours; and

(v) If blood alcohol testing couldhave been completed within eighthours, the name, address, and tele-phone number of the testing site whereblood testing could have occurred.

(3) Notwithstanding the absence of areasonable suspicion alcohol test underthis section, an employer shall not per-mit a covered employee to report forduty or remain on duty requiring theperformance of safety-sensitive func-tions while the employee is under theinfluence of or impaired by alcohol, asshown by the behavioral, speech, orperformance indicators of alcohol mis-use, nor shall an employer permit thecovered employee to perform or con-tinue to perform safety-sensitive func-tions, until:

(i) An alcohol test is administeredand the employee’s alcohol concentra-tion measures less than 0.02 percent; or

(ii) The start of the employee’s nextregularly scheduled duty period, butnot less than 8 hours following the de-termination under paragraph (b) of thissection that there is reasonable sus-picion to believe that the employee hasviolated the prohibitions in this part.

(4) Except as provided in paragraph(d)(2), no employer shall take any ac-tion under this part against a coveredemployee based solely on the employ-ee’s behavior and appearance in the ab-sence of an alcohol test. This does notprohibit an employer with the author-ity independent of this part from tak-ing any action otherwise consistentwith law.

[59 FR 7549, Feb. 15, 1994, as amended at 59FR 62240, Dec. 2, 1994]

§ 654.39 Return to duty testing.Each employer shall ensure that be-

fore a covered employee returns toduty requiring the performance of asafety-sensitive function after engag-ing in conduct prohibited by subpart Bof this part, the employee shall under-go a return to duty alcohol test with aresult indicating an alcohol concentra-tion of less than 0.02. (See § 654.75)


973


§ 654.41 Follow-up testing.(a) Follow-up testing shall be con-

ducted when the employee is per-forming safety-sensitive functions; justbefore the employee is to perform safe-ty-sensitive functions; or just after theemployee has ceased performing suchfunctions.

(b) Following a determination under§ 654.75(b) that a covered employee is inneed of assistance in resolving prob-lems associated with alcohol misuse,each employer shall ensure that theemployee is subject to unannouncedfollow-up testing as directed by a sub-stance abuse professional in accord-ance with the provisions of§ 654.75(c)(2)(ii).

§ 654.43 Retesting of covered employ-ees with an alcohol concentrationof 0.02 or greater but less than 0.04.

Each employer shall retest a coveredemployee to ensure compliance withthe provisions of § 654.65, if the em-ployer chooses to permit the employeeto perform a safety-sensitive functionwithin 8 hours following the adminis-tration of an alcohol test indicating analcohol concentration of 0.02 or greaterbut less than 0.04.

§ 654.45 Supervisor acting as breath al-cohol technician.

An employer shall not permit a di-rect supervisor of an employee to serveas the breath alcohol technician for analcohol test of the employee.

[60 FR 12300, Mar. 6, 1995]

Subpart D—AdministrativeRequirements

§ 654.51 Retention of records.(a) General requirement. Each em-

ployer shall maintain records of its al-cohol misuse prevention program asprovided in this section. The recordsshall be maintained in a secure loca-tion with controlled access.

(b) Period of retention. Each employershall maintain the records in accord-ance with the following schedule:

(1) Five years. Records of employee al-cohol test results with results indi-cating an alcohol concentration of 0.02or greater, documentation of refusalsto take required alcohol tests, calibra-

tion documentation, and employeeevaluation and referrals shall be main-tained for a minimum of five years.Each employer shall maintain a copyof its annual MIS report(s) for a min-imum of five years.

(2) Two years. Records related to thecollection process (except calibrationof EBT’s) and training shall be main-tained for a minimum of two years.

(3) One year. Records of all test re-sults less than 0.02 shall be maintainedfor a minimum of one year.

(c) Types of records. The followingspecific records shall be maintained.

(1) Records related to the collectionprocess:

(i) Collection logbooks, if used.(ii) Documents relating to the ran-

dom selection process.(iii) Calibration documentation for

evidential breath testing devices.(iv) Documentation of breath alcohol

technician training.(v) Documents generated in connec-

tion with decisions to administer rea-sonable suspicion alcohol tests.

(vi) Documents generated in connec-tion with decisions on post-accidenttests.

(vii) Documents verifying existenceof a medical explanation of the inabil-ity of a covered employee to provideadequate breath for testing.

(2) Records related to test results:(i) The employer’s copy of the alco-

hol test form, including the results ofthe test.

(ii) Documents related to the refusalof any covered employee to submit toan alcohol test required by this part.

(iii) Documents presented by a cov-ered employee to dispute the result ofan alcohol test administered under thispart.

(3) Records related to other viola-tions of this part.

(4) Records related to evaluations:(i) Records pertaining to a deter-

mination by a substance abuse profes-sional concerning a covered employee’sneed for assistance.

(ii) Records concerning a covered em-ployee’s compliance with the rec-ommendations of the substance abuseprofessional.

(5) Copies of annual MIS reports sub-mitted to FTA.


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49 CFR Ch. VI (10–1–99 Edition)§ 654.53

(6) Records related to education andtraining:

(i) Materials on alcohol misuseawareness, including a copy of the em-ployer’s policy on alcohol misuse.

(ii) Documentation of compliancewith the requirements of § 654.71 of thispart.

(iii) Documentation of training pro-vided to supervisors for the purpose ofqualifying the supervisors to make adetermination concerning the need foralcohol testing based on reasonablesuspicion.

(iv) Certification that any trainingconducted under this part complieswith the requirements for such train-ing.

§ 654.53 Reporting of results in a man-agement information system.

(a) Each recipient shall submit to theFTA Office of Safety and Security byMarch 15 of each year a report coveringthe previous calendar year (Januarythrough December 31), summarizingthe results of its alcohol misuse pre-vention program.

(b) Each recipient shall ensure theaccuracy and timeliness of each reportsubmitted by an employer, consortium,joint enterprise, or by a third partyservice provider acting on the employ-er’s behalf.

(c) Each report that contains infor-mation on an alcohol screening test re-sult of 0.02 or greater or a violation ofthe alcohol misuse provisions of thispart shall include the following infor-mational elements:

(1) Number of FTA covered employ-ees by employee category.

(2)(i) Number of screening tests bytype of test and employee category.

(ii) Number of confirmation tests, bytype of test and employee category.

(3) Number of confirmation alcoholtests indicating an alcohol concentra-tion of 0.02 or greater but less than 0.04,by type of test and employee category.

(4) Number of confirmation alcoholtests indicating an alcohol concentra-tion of 0.04 or greater, by type of testand employee category.

(5) Number of persons denied a posi-tion as a covered employee following apre-employment alcohol test indi-cating an alcohol concentration of 0.04or greater.

(6) Number of covered employeeswith a confirmation alcohol test indi-cating an alcohol concentration of 0.04or greater who were returned to dutyin covered positions during the report-ing period (having complied with therecommendation of a substance abuseprofessional as described in § 654.75).

(7) Number of fatal and nonfatal acci-dents which resulted in a post-accidentalcohol test indicating an alcohol con-centration of 0.04 or greater.

(8) Number of fatalities resultingfrom accidents which resulted in apost-accident alcohol test indicatingan alcohol concentration of 0.04 orgreater.

(9) Number of covered employees whowere found to have violated other pro-visions of subpart B of this part andthe action taken in response to the vio-lation.

(10) Number of covered employeeswho were administered alcohol anddrug tests at the same time, with apositive drug test result and an alcoholtest result indicating an alcohol con-centration of 0.04 or greater.

(11) Number of covered employeeswho refused to submit to a random al-cohol test required under this part.

(12) Number of covered employeeswho refused to submit to a non-randomalcohol test required under this part.

(13) Number of supervisors who havereceived training during the reportingperiod in determining the existence ofreasonable suspicion of alcohol misuse.


(d) Each report with no screeningtest results of 0.02 or greater or viola-tions of the alcohol misuse provisionsof this part shall include the followinginformational elements. (This reportmay only be submitted if the programresults meet these criteria.)

(1) Number of FTA covered employ-ees.

(2) Number of alcohol tests conductedwith results less than 0.02 by type oftest and employee category.

(3) Number of employees with a con-firmation alcohol test indicating an al-cohol concentration of 0.04 or greaterwho were returned to duty in a coveredposition during the reporting period.


975


(4) Number of covered employees whorefused to submit to a random alcoholtest required under this part.

(5) Number of covered employees whorefused to submit to a non-random al-cohol test required under this part.

(6) Number of supervisors who havereceived training during the reportingperiod in determining the existence ofreasonable suspicion of alcohol misuse.


§ 654.55 Access to facilities andrecords.

(a) Except as required by law or ex-pressly authorized or required in thissection, no employer shall release cov-ered employee information that is con-tained in records required to be main-tained under § 654.51.

(b) A covered employee is entitled,upon written request, to obtain copiesof any records pertaining to the em-ployee’s use of alcohol, including anyrecords pertaining to his or her alcoholtests. The employer shall promptlyprovide the records requested by theemployee. Access to an employee’srecords shall not be contingent uponpayment for records other than thosespecifically requested.

(c) Each employer shall permit ac-cess to all facilities utilized in com-plying with the requirements of thispart to the Secretary of Transpor-tation, any DOT agency with regu-latory authority over the employer orany of its covered employees or to aState oversight agency authorized tooversee rail fixed guideway systems.

(d) Each employer shall make avail-able copies of all results for employeralcohol testing conducted under thispart and any other information per-taining to the employer’s alcohol mis-use prevention program, when re-quested by the Secretary of Transpor-tation, or any DOT agency with regu-latory authority over the employer orcovered employee, or to a State over-sight agency authorized to oversee railfixed guideway systems.

(e) When requested by the NationalTransportation Safety Board as part ofan accident investigation, employersshall disclose information related tothe employer’s administration of apost-accident alcohol test administered

following the accident under investiga-tion.

(f) Records shall be made available toa subsequent employer upon receipt ofwritten request from the covered em-ployee. Disclosure by the subsequentemployer is permitted only as ex-pressly authorized by the terms of theemployee’s request.

(g) An employer may disclose infor-mation required to be maintainedunder this part pertaining to a coveredemployee to the employee or the deci-sionmaker in a lawsuit, grievance, orother proceeding initiated by or on be-half of the individual, and arising fromthe results of an alcohol test adminis-tered under this part, or from the em-ployer’s determination that the em-ployee engaged in conduct prohibitedby subpart B of this part (including,but not limited to, a worker’s com-pensation, unemployment compensa-tion, or other proceeding relating to abenefit sought by the employee).

(h) An employer shall release infor-mation regarding a covered employee’srecords as directed by the specific,written consent of the employee au-thorizing release of the information toan identified person. Release of suchinformation by the person receivingthe information is permitted only inaccordance with the terms of the em-ployee’s consent.

Subpart E—Consequences for Em-ployees Engaging in Alcohol-related Conduct

§ 654.61 Removal from safety-sensitivefunction.

Except as provided in subpart F ofthis part, no employer shall permit anycovered employee to perform safety-sensitive functions if the employee hasengaged in conduct prohibited by sub-part B of this part or an alcohol misuserule of another DOT agency.

§ 654.63 Required evaluation and test-ing.

No employer shall permit any cov-ered employee who has engaged in con-duct prohibited by subpart B of thispart to perform safety-sensitive func-tions unless the employee has met therequirements of § 654.75.


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49 CFR Ch. VI (10–1–99 Edition)§ 654.65

§ 654.65 Other alcohol-related conduct.(a) No employer shall permit a cov-

ered employee tested under the provi-sions of subpart C of this part who isfound to have an alcohol concentrationof 0.02 or greater but less than 0.04 toperform or continue to perform safety-sensitive functions, until:

(1) The employee’s alcohol concentra-tion measures less than 0.02; or

(2) The start of the employee’s nextregularly scheduled duty period, butnot less than eight hours following ad-ministration of the test.

(b) Except as provided in paragraph(a) of this section, no employer shalltake any action under this part againstan employee based solely on test re-sults showing an alcohol concentrationless than 0.04. This does not prohibit anemployer with authority independentof this part from taking any actionotherwise consistent with law.

Subpart F—Alcohol MisuseInformation, Training, and Referral

§ 654.71 Employer obligation to pro-mulgate a policy on the misuse ofalcohol.

(a) General requirements. Each em-ployer shall provide educational mate-rials that explain the requirements ofthis part and the employer’s policiesand procedures with respect to meetingthose requirements. The policy shall beadopted by the employer’s governingboard.

(1) The employer shall ensure that acopy of these materials is distributedto each covered employee prior to thestart of alcohol testing under this sec-tion of the employer’s alcohol misuseprevention program and to each personsubsequently hired or transferred to acovered position.

(2) Each employer shall provide writ-ten notice to every covered employeeand to representatives of employee or-ganizations of the availability of thisinformation.

(b) Required content. The materials tobe made available to covered employ-ees shall include detailed discussion ofat least the following:

(1) The identity of the person des-ignated by the employer to answer em-ployee questions about the materials.

(2) The categories of employees whoare subject to the provisions of thispart.

(3) Sufficient information about thesafety-sensitive functions performed bythose employees to make clear whatperiod of the work day the covered em-ployee is required to be in compliancewith this part.

(4) Specific information concerningemployee conduct that is prohibited bythis part.

(5) The circumstances under which acovered employee will be tested for al-cohol under this part.

(6) The procedures that will be usedto test for the presence of alcohol, pro-tect the employee and the integrity ofthe breath testing process, safeguardthe validity of the test results, and en-sure that those results are attributedto the correct employee.

(7) The requirement that a coveredemployee submit to alcohol tests ad-ministered in accordance with thispart.

(8) An explanation of what con-stitutes a refusal to submit to an alco-hol test and the attendant con-sequences.

(9) The consequences for covered em-ployees found to have violated the pro-hibitions imposed under subpart B, in-cluding the requirement that the em-ployee be removed immediately fromsafety-sensitive functions, and the pro-cedures under § 654.75 of this part.

(10) The consequences for coveredemployees found to have an alcoholconcentration of 0.02 or greater but lessthan 0.04.

(11) Information concerning the ef-fects of alcohol misuse on an individ-ual’s health, work, and personal life;signs and symptoms of an alcohol prob-lem (the employee’s or a coworker’s);and available methods of interveningwhen an alcohol problem is suspected,including confrontation, referral toany available EAP, and/or referral tomanagement.

(c) Optional provisions. The materialssupplied to covered employees mayalso include information on additionalemployer policies with respect to theuse or possession of alcohol, includingany consequences for an employee


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found to have a specified alcohol con-centration, that are based on the em-ployer’s authority independent of thispart. Any such additional policies orconsequences shall be clearly and obvi-ously described as being based on inde-pendent authority.

§ 654.73 Training for supervisors.

Every employer shall ensure that su-pervisors designated to determinewhether reasonable suspicion exists torequire a covered employee to undergoalcohol testing under § 654.37 receive atleast 60 minutes of training on thephysical, behavioral, speech, and per-formance indicators of probable alco-hol misuse.

§ 654.75 Referral, evaluation, andtreatment.

(a) Each covered employee who hasengaged in conduct prohibited by sub-part B of this part shall be advised bythe employer of the resources availableto the employee in evaluating and re-solving problems associated with themisuse of alcohol, including the names,addresses, and telephone numbers ofsubstance abuse professionals andcounseling and treatment programs.

(b) Each covered employee who en-gages in conduct prohibited under sub-part B shall be evaluated by a sub-stance abuse professional who shall de-termine what assistance, if any, theemployee needs in resolving problemsassociated with alcohol misuse.

(c)(1) Before a covered employee re-turns to duty requiring the perform-ance of a safety-sensitive functionafter engaging in conduct prohibited bysubpart B of this part, the employeeshall undergo a return to duty alcoholtest with a result indicating an alcoholconcentration of less than 0.02. In addi-tion, the substance abuse professionalmay recommend that the employee besubject to a return to duty drug test,performed in accordance with 49 CFRpart 40.

(2) In addition, each covered em-ployee identified as needing assistancein resolving problems associated withalcohol misuse:

(i) Shall be evaluated by a substanceabuse professional to determine thatthe employee has properly followed any

rehabilitation program prescribedunder paragraph (b) of this section, and

(ii) Shall be subject to unannouncedfollow-up alcohol testing administeredby the employer following the employ-ee’s return to duty. The number andfrequency of such follow-up testingshall be as directed by the substanceabuse professional, and consist of atleast six tests in the first 12 monthsfollowing the employee’s return toduty. In addition, follow up testingmay include testing for drugs , as di-rected by the substance abuse profes-sional, to be performed in accordancewith of 49 CFR part 40. Follow-up test-ing shall not exceed 60 months fromthe date of the employee’s return toduty. The substance abuse professionalmay terminate the requirement for fol-low-up testing at any time after thefirst six tests have been administered,if the substance abuse professional de-termines that such testing is no longernecessary.

(d) Evaluation and rehabilitationmay be provided by the employer, by asubstance abuse professional undercontract with the employer, or by asubstance abuse professional not affili-ated with the employer. The choice ofsubstance abuse professional and as-signment of costs shall be made in ac-cordance with employer/employeeagreements and employer policies.

(e) The employer shall ensure that asubstance abuse professional who de-termines that a covered employee re-quires assistance in resolving problemswith alcohol misuse does not refer theemployee to the substance abuse pro-fessional’s private practice from whichthe substance abuse professional re-ceives remuneration or to a person ororganization in which the substanceabuse professional has a financial in-terest. This paragraph does not pro-hibit a substance abuse professionalfrom referring an employee for assist-ance provided through—

(1) A public agency, such as a State,county, or municipality;

(2) The employer or a person undercontract to provide treatment for alco-hol problems on behalf of the employer;

(3) The sole source of therapeuticallyappropriate treatment under the em-ployee’s health insurance program; or


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49 CFR Ch. VI (10–1–99 Edition)§ 654.81

(4) The sole source of therapeuticallyappropriate treatment reasonably ac-cessible to the employee.

(f) The requirements of this sectionwith respect to referral, evaluation,and rehabilitation, do not apply to ap-plicants who refuse to submit to a pre-employment alcohol test or who have apre-employment alcohol test with a re-sult indicating an alcohol concentra-tion of 0.04 or greater.

Subpart G—Compliance

§ 654.81 Compliance a condition ofFTA financial assistance.

(a) General. A recipient may not beeligible for Federal financial assistanceunder section 3, 9, or 18 of the FederalTransit Act, as amended, or under sec-tion 103(e)(4) of title 23 of the UnitedStates Code if a recipient fails to es-tablish and implement an alcohol mis-use prevention program as required bythis part. Failure to certify compliancewith these requirements, as specified in§ 654.83, will result in the suspension ofa grantee’s eligibility for Federal fund-ing.

(b) Criminal violation. A recipient issubject to criminal sanctions and finesfor false statements or misrepresenta-tions under § 1001 of title 18 of theUnited States Code.

(c) State’s role. Each State shall cer-tify compliance on behalf of its section3, 9 or 18 subrecipients, as applicable,whose grant the State administers. Inso certifying, the State shall ensurethat each subrecipient is complyingwith the requirements of this part. Asection 3, 9 or 18 subrecipient, throughthe administering State, is subject tosuspension of funding from the State ifsuch subrecipient is not in compliancewith this part.

§ 654.83 Requirement to certify compli-ance.

(a) A recipient of FTA financial as-sistance shall certify annually to theapplicable FTA Regional Office compli-ance with the requirements of thispart, including the training require-ments. Large operators shall certifycompliance initially by January 1, 1995.Small operators and States shall cer-tify compliance initially by January 1,1996.

(b) A certification must be author-ized by the organization’s governingboard or other authorizing official, andmust be signed by a party specificallyauthorized to do so. A certificationmust comply with the applicable sam-ple certification provided in appendixA to this part.

APPENDIX A TO PART 654—[RESERVED]


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PART 659—RAIL FIXED GUIDEWAYSYSTEMS; STATE SAFETY OVERSIGHT


Sec.659.1 Purpose.659.3 Scope.659.5 Definitions.659.7 Withholding of funds for non-compli-

ance.

Subpart B—The Role of the State

659.21 Designation of oversight agency.659.23 Confidential investigation reports.

Subpart C—The Oversight Agency’s Role

659.31 The system safety program standard.659.33 System safety program plans.659.35 Transit agency annual audit reports.659.37 Safety reviews.659.39 Transit agency report on accidents

and unacceptable hazardous conditions.659.41 Investigations.659.43 Corrective actions.659.45 Oversight agency report to the Fed-

eral Transit Administration.659.47 Use of contractors.659.49 Certification of compliance.

APPENDIX TO PART 659—SAMPLE CERTIFI-CATION OF COMPLIANCE.

AUTHORITY: 49 U.S.C. § 5330.



§ 659.1 Purpose.This part implements 49 U.S.C. 5330

by requiring a State to oversee thesafety of rail fixed guideway systemsthrough a designated oversight agency.

§ 659.3 Scope.This part applies to a State that has

within its boundaries a rail fixed guide-way system not regulated by the Fed-eral Railroad Administration (FRA).

§ 659.5 Definitions.As used in this part—Accident means any event involving

the revenue service operation of a railfixed guideway system if as a result:

(1) An individual dies;(2) An individual suffers bodily injury

and immediately receives medicaltreatment away from the scene of theaccident; or

(3) A collision, derailment, or firecauses property damage in excess of$100,000.

APTA Guidelines means the AmericanPublic Transit Association’s ‘‘Manualfor the Development of Rail TransitSystem Safety Program Plans,’’ pub-lished on August 20, 1991.

Contractor means an entity that per-forms tasks required by this part onbehalf of the oversight or transit agen-cy. The transit agency may not be acontractor for the oversight agency.

FTA means the Federal Transit Ad-ministration, an agency within theU.S. Department of Transportation.

Hazardous condition means a condi-tion that may endanger human life orproperty. It includes unacceptable haz-ardous conditions.

Investigation means a process to de-termine the probable cause of an acci-dent or an unacceptable hazardous con-dition; it may involve no more than areview and approval of the transitagency’s determination of the probablecause of an accident or unacceptablehazardous condition.

Oversight agency means the entity,other than the transit agency, des-ignated by the State or several Statesto implement this part.

Rail fixed guideway system means anylight, heavy, or rapid rail system, mon-orail, inclined plane, funicular, trolley,or automated guideway that is:

(1) Included in FTA’s calculation offixed guideway route miles or receivesfunding under FTA’s formula programfor urbanized areas (49 U.S.C. 5336); and

(2) Not regulated by the Federal Rail-road Administration.

Safety means freedom from danger.Safety review means a formal, com-

prehensive, on-site examination by theoversight agency of a transit agency’ssafety practices to determine whetherthey comply with the policies and pro-cedures required under the transitagency’s system safety program plan.

Security means freedom from inten-tional danger.

System safety program plan means adocument adopted by the transit agen-cy detailing its safety policies, objec-tives, responsibilities, and procedures.

System safety program standard meansthe standard developed and adopted bythe State oversight agency which, at a


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49 CFR Ch. VI (10–1–99 Edition)§ 659.7

minimum, complies with the APTAGuidelines and which addresses per-sonal security.

Transit agency means an entity oper-ating a rail fixed guideway system.

Unacceptable hazardous conditionmeans a hazardous condition deter-mined to be an unacceptable hazardouscondition using the APTA Guidelines’Hazard Resolution Matrix (APTAGuidelines, checklist number 7).

§ 659.7 Withholding of funds for non-compliance.

The Administrator of the FTA maywithhold up to five percent of theamount required to be apportioned foruse in any State or affected urbanizedarea in such State under FTA’s for-mula program for urbanized areas forany fiscal year beginning after Sep-tember 30, 1997, if the State in the pre-vious fiscal year has not met the re-quirements of this part and the Admin-istrator determines that the State isnot making adequate efforts to complywith this part.

Subpart B—The Role of the State

§ 659.21 Designation of oversight agen-cy.

(a) For a transit agency or agenciesoperating within a single State, theState must designate an agency of theState, other than a transit agency, toserve as the oversight agency and toimplement the requirements of thispart.

(b) For a transit agency operating asystem within more than one State,those States may designate a single en-tity, other than the transit agency, toimplement the requirements of thispart.

§ 659.23 Confidential investigation re-ports.

The State may prohibit an investiga-tion report that may be prepared bythe oversight agency from being admit-ted into evidence or used in a civil ac-tion for damages resulting from a mat-ter mentioned in the report.

Subpart C—The OversightAgency’s Role

§ 659.31 The system safety programstandard.

(a) The oversight agency must de-velop and adopt a system safety pro-gram standard that, at a minimum—

(1) Complies with the American Pub-lic Transit Association’s ‘‘Manual forthe Development of Rail Transit Sys-tem Safety Program Plans’’ (APTAGuidelines) published on August 20,1991, hereby incorporated by reference;and

(2) Requires the transit agency to ad-dress the personal security of its pas-sengers and employees.

(b) The APTA Guidelines specify pro-cedures for developing a system safetyprogram plan, generally discuss theprinciples of system safety, and specifi-cally address certain issues critical tothe safe operation of a rail fixed guide-way system.

(c) The incorporation by reference ofthe APTA Guidelines has been ap-proved by the Director of the FederalRegister in accordance with 5 U.S.C.552(a) and 1 CFR Part 51. Copies of theAPTA Guidelines may be obtainedfrom the American Public Transit As-sociation, 1201 New York Avenue, NW.,Washington DC 20005–3917, (202) 893–4000. The Guidelines may be inspectedat, and are available from the FederalTransit Administration, Office of Safe-ty and Security, 400 7th Street, SW.,Washington, D.C. 20590, and at the Of-fice of the Federal Register, 800 NorthCapitol Street, NW., Washington, DC.

§ 659.33 System safety program plans.(a) Except as provided in § 659.33(b),

the oversight agency must —(1) Require the transit agency to im-

plement, beginning on January 1, 1997,a system safety program plan con-forming to the oversight agency’s sys-tem safety program standard; and

(2) Approve in writing before January1, 1997, the transit agency’s systemsafety program plan.

(b) The oversight agency must —(1) Require the transit agency to im-

plement beginning on January 1, 1998,


995


the security portion of its system safe-ty program plan; and

(2) Approve in writing before January1, 1998, the security portions of thetransit agency’s system safety programplan.

(c) After December 31, 1996, the over-sight agency must review and approve,in writing, the transit agency’s systemsafety program plan, as necessary, andrequire the transit agency to update itssystem safety program plan, as nec-essary.

(d) The oversight agency may pro-hibit a transit agency from publiclydisclosing the security aspects of thesystem safety program plan.

[60 FR 67046, Dec. 27, 1995, as amended at 61FR 67493, Dec. 23, 1996]

§ 659.35 Transit agency annual auditreports.

The oversight agency must—(a) Require that the transit agency

submit, annually, a copy of the annualsafety audit report prepared by thetransit agency as a result of the Inter-nal Safety Audit Process (APTA Guide-lines, checklist number 9); and

(b) Review the annual safety auditreports prepared by the transit agency.

§ 659.37 Safety reviews.

At least every three years the over-sight agency must conduct an on-sitesafety review of the transit agency’simplementation of its system safetyprogram plan and prepare and issue areport containing findings and rec-ommendations resulting from that re-view, which, at a minimum, must in-clude an analysis of the efficacy of thesystem safety program plan and a de-termination of whether it should be up-dated.

§ 659.39 Transit agency report on acci-dents and unacceptable hazardousconditions.

The oversight agency must requirethat the transit agency report acci-dents and unacceptable hazardous con-ditions to the oversight agency withina specified period of time.

§ 659.41 Investigations.

The oversight agency must—

(a) Establish procedures to inves-tigate accidents and unacceptable haz-ardous conditions.

(b) Unless the National Transpor-tation Safety Board has investigated orwill investigate an accident, the over-sight agency must investigate acci-dents and unacceptable hazardous con-ditions occurring at a transit agencyunder its jurisdiction.

§ 659.43 Corrective actions.The oversight agency must require

the transit agency to minimize, con-trol, correct, or eliminate any inves-tigated hazardous condition within atime period specified by and in accord-ance with a corrective action plan ap-proved by the oversight agency.

§ 659.45 Oversight agency report to theFederal Transit Administration.

(a) Initial submissions. Before January1, 1997, the oversight agency must sub-mit to FTA the following information,which must be updated as necessary:

(1) The name and address of the over-sight agency;

(2) The name(s) and address(es) of thetransit agency or agencies subject tothe oversight agency’s jurisdictionunder this part; and

(3) A written description of the over-sight agency’s oversight program in-cluding the following information:

(i) A copy of its system safety pro-gram standard;

(ii) Its procedures or process for re-viewing and approving the transitagency’s system safety program plan;

(iii) Its investigatory procedures; and(iv) Its procedures for ensuring that

appropriate corrective actions havebeen taken by the transit agency tocorrect, eliminate, minimize, or con-trol investigated hazardous conditions.

(b) Annual submissions. Before March15 of each year, the oversight agencymust submit to FTA a publicly avail-able annual report summarizing itsoversight activities for the precedingtwelve months, including a descriptionof the most common probable causalfactors of accidents and unacceptablehazardous conditions.

(c) Periodic submissions. Status re-ports of accidents, hazardous condi-tions, and corrective action plans mustbe forwarded to the FTA upon request.


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49 CFR Ch. VI (10–1–99 Edition)§ 659.47

(d) Addresses. Reports and annualsummaries must be sent to: FederalTransit Administration, Office of Safe-ty and Security, 400 7th Street, S.W.,Washington, DC 20590.

[60 FR 67046, Dec. 27, 1995, as amended at 61FR 67493, Dec. 23, 1996]

§ 659.47 Use of contractors.(a) The oversight agency may use a

contractor to—(1) Develop a system safety program

standard;(2) Review system safety program

plans;(3) Review annual audit reports;(4) Conduct safety reviews;(5) Prepare safety review findings;(6) Establish investigation proce-

dures;(7) Conduct investigations;(8) Review corrective action plans;

and/or(9) Prepare initial or annual submis-

sions to FTA.(b) The oversight agency may allow a

transit agency to use a contractor to—(1) Develop or update a system safety

program plan;(2) Prepare annual audit reports; and/

or(3) Develop a corrective action plan.

§ 659.49 Certification of compliance.(a) Before January 1, 1997, and annu-

ally thereafter, the oversight agencymust certify to the FTA that it hascomplied with the requirements of thispart. Each certification shall complywith the applicable sample certifi-cation provided in the appendix to thispart. Each certification shall be sentto: Federal Transit Administration, Of-fice of Safety and Security, 400 7thStreet, S.W., Washington, DC 20590.

(b) Each certification must be signedby an official authorized by the over-sight agency and must comply with theapplicable sample certification pro-vided in the appendix to this part.

APPENDIX TO PART 659—SAMPLECERTIFICATION OF COMPLIANCE

This appendix contains an example of cer-tification language.

I, (name), (title), certify that (name of theoversight agency) has implemented a Stateoversight program that meets the require-ments of 49 CFR part 659 and further certify

that I have no conflict of interest with anyrail fixed guideway system overseen as a re-sult of 49 CFR part 659, nor does (name of theoversight agency) and its contractors.

PART 661—BUY AMERICA REQUIRE-MENTS—SURFACE TRANSPOR-TATION ASSISTANCE ACT OF1982, AS AMENDED

Sec.661.1 Applicability.661.3 Definitions.661.5 General requirements.661.6 Certification requirement for procure-

ment of steel or manufactured products.661.7 Waivers.661.9 Application for waivers.661.11 Rolling stock procurements.661.12 Certification requirement for pro-

curement of buses, other rolling stockand associated equipment.

661.13 Grantee responsibility.661.15 Investigation procedures.661.17 Failure to comply with certification.661.18 Intentional violations.661.19 Sanctions.661.20 Rights of third parties.661.21 State Buy America provisions.

AUTHORITY: 49 U.S.C. 5323(j) (formerly sec.165, Pub. L. 97–424; as amended by sec. 337,Pub. L. 100–17 and sec. 1048, Pub. L. 102–240);49 CFR 1.51.

SOURCE: 56 FR 932, Jan. 9, 1991, unless oth-erwise noted.

§ 661.1 Applicability.Unless otherwise noted, this part ap-

plies to all federally assisted procure-ments using funds authorized by theFederal Mass Transit Act of 1964, asamended; 23 U.S.C. 103(e)(4); and sec-tion 14 of the National Capital Trans-portation Act of 1969, as amended.

§ 661.3 Definitions.As used in this part:Act means the Surface Transpor-

tation Assistance Act of 1982 (Pub. L.97–424), as amended by section 337 ofthe Surface Transportation and Uni-form Relocation Assistance of 1987(Pub. L. 100–17).

Administrator means the Adminis-trator of FTA, or designee.

Component means any article, mate-rial, or supply, whether manufacturedor unmanufactured, that is directly in-corporated into the end product at thefinal assembly location.


997


Grantee means any entity that is arecipient of FTA funds.

Manufacutured product means an itemproduced as a result of manufacturingprocess.

Manufacturing process means the ap-plication of processes to alter the formor function of materials or of elementsof the product in a manner addingvalue and transforming those materialsor elements so that they represent anew end product functionally differentfrom that which would result frommere assembly of the elements or ma-terials.

Rolling stock means transit vehiclessuch as buses, vans, cars, railcars, loco-motives, trolley cars and buses, andferry boats, as well as vehicles used forsupport services.

STURAA means the Surface Trans-portation and Uniform Relocation As-sistance Act of 1987 (Pub. L. No. 100–17).


United States means the severalStates, the Commonwealth of PuertoRico, the District of Columbia, Guam,American Samoa, the Virgin Islands,and the Commonwealth of the North-ern Mariana Islands.

[56 FR 932, Jan. 9, 1991, as amended at 61 FR6302, Feb. 16, 1996]

§ 661.5 General requirements.(a) Except as provided in § 661.7 and

§ 661.11 of this part, no funds may be ob-ligated by FTA for a grantee projectunless all iron, steel, and manufacturedproducts used in the project are pro-duced in the United States.

(b) All steel and iron manufacturingprocesses must take place in theUnited States, except metallurgicalprocesses involving refinement of steeladditives.

(c) The steel and iron requirementsapply to all construction materialsmade primarily of steel or iron andused in infrastructure projects such astransit or maintenance facilities, raillines, and bridges. These items include,but are not limited to, structural steelor iron, steel or iron beams and col-umns, running rail and contact rail.These requirements do not apply tosteel or iron used as components orsubcomponents of other manufacturedproducts or rolling stock.

(d) For a manufactured product to beconsidered produced in the UnitedStates:

(1) All of the manufacturing proc-esses for the product must take placein the United States; and

(2) All of the components of the prod-uct must be of U.S. origin. A compo-nent is considered of U.S. origin if it ismanufactured in the United States, re-gardless of the origin of its subcompo-nents.

[61 FR 6302, Feb. 16, 1996]

§ 661.6 Certification requirement forprocurement of steel or manufac-tured products.

If steel or manufactured products (asdefined in §§ 661.3 and 661.5 of this part)are being procured, the appropriatecertificate as set forth below shall becompleted and submitted by each bid-der in accordance with the requirementcontained in § 661.13(b) of this part.

Certificate of Compliance With Section 165(a)

The bidder hereby certifies that it willcomply with the requirements of section165(a) of the Surface Transportation Assist-ance Act of 1982, as amended, and the appli-cable regulations in 49 CFR part 661.

Date lllllllllllllllllllllSignature llllllllllllllllllCompany Name lllllllllllllllTitle lllllllllllllllllllll

Certificate for Non-Compliance With Section165(a)

The bidder hereby certifies that it cannotcomply with the requirements of section165(a) of the Surface Transportation Assist-ance Act of 1982, as amended, but it mayqualify for an exception to the requirementpursuant to section 165 (b)(2) or (b)(4) of theSurface Transportation Assistance Act of1982 and regulations in 49 CFR 661.7.Date lllllllllllllllllllllSignature llllllllllllllllllCompany Name lllllllllllllllTitle lllllllllllllllllllll

§ 661.7 Waivers.(a) Section 165(b) of the Act provides

that the general requirements of sec-tion 165(a) shall not apply in four spe-cific instances. This section sets outthe conditions for the three statutorywaivers based on public interest, non-availability, and price-differential.Section 661.11 of this part sets out theconditions for the fourth statutory


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49 CFR Ch. VI (10–1–99 Edition)§ 661.7

waiver governing the procurement ofrolling stock and associated equip-ment.

(b) Under the provision of section165(b)(1) of the Act, the Administratormay waive the general requirements ofsection 165(a) if the Administratorfinds that their application would beinconsistent with the public interest.In determining whether the conditionsexist to grant this public interest waiv-er, the Administrator will consider allappropriate factors on a case-by-casebasis, unless a general exception is spe-cifically set out in this part.

(c) Under the provision of section165(b)(2) of the Act, the Administratormay waive the general requirements ofsection 165(a) if the Administratorfinds that the materials for which awaiver is requested are not produced inthe United States in sufficient and rea-sonably available quantities and of asatisfactory quality.

(1) It will be presumed that the con-ditions exist to grant this non-avail-ability waiver if no responsive and re-sponsible bid is received offering anitem produced in the United States.

(2) In the case of a sole source pro-curement, the Administrator will grantthis non-availability waiver only if thegrantee provides sufficient informationwhich indicates that the item to beprocured is only available from a singlesource or that the item to be procuredis not produced in sufficient and rea-sonably available quantities of a satis-factory quality in the United States.

(d) Under the provision of section165(b)(4) of the Act, the Administratormay waive the general requirements ofsection 165(a) if the Administratorfinds that the inclusion of a domesticitem or domestic material will increasethe cost of the contract between thegrantee and its supplier of that item ormaterial by more than 25 percent. TheAdministrator will grant this price-dif-ferential waiver if the amount of thelowest responsive and responsible bidoffering the item or material that isnot produced in the United States mul-tiplied by 1.25 is less than the amountof the lowest responsive and respon-sible bid offering the item or materialproduced in the United States.

(e) The four statutory waivers of sec-tion 165(b) of the Act as set out in this

part shall be treated as being separateand distinct from each other.

(f) The waivers described in para-graphs (b) and (c) of this section maybe granted for a component or sub-component in the case of the procure-ment of the items governed by section165(b)(3) of the Act (requirements forrolling stock). If a waiver is granted fora component or a subcomponent, thatcomponent or subcomponent will beconsidered to be of domestic origin forthe purposes of § 661.11 of this part.

(g) The waivers described in para-graphs (b) and (c) of this section maybe granted for a specific item or mate-rial that is used in the production of amanufactured product that is governedby the requirements of § 661.5(d) of thispart. If such a waiver is granted tosuch a specific item or material, thatitem or material will be treated asbeing of domestic origin.

(h) The provisions of this sectionshall not apply to products produced ina foreign country if the Secretary, inconsultation with the United StatesTrade Representative, determines that:

(1) That foreign country is party toan agreement with the United Statespursuant to which the head of an agen-cy of the United States has waived therequirements of this section; and

(2) That foreign country has violatedthe terms of the agreement by dis-criminating against products coveredby this section that are produced in theUnited States and are covered by theagreement.

APPENDIX A TO § 661.7—GENERALWAIVERS

(a) All waivers published in 48 CFR 25.108which establish excepted articles, materials,and supplies for the Buy American Act of1933 (41 U.S.C. 10a–d), as the waivers may beamended from time to time, apply to thispart under the provisions of § 661.7 (b) and (c).

(b) Under the provisions of § 661.7(b) of thispart, 15 passenger vans produced by ChryslerCorporation are exempt from the require-ment that final assembly of the vans takeplace in the United States (49 FR 13944, April9, 1984).

(c) Under the provisions of § 661.7(b) of thispart, 15 Passenger Wagons produced byChrysler Corporation are exempt from therequirement that final assembly of the wag-ons take place in the United States (letter toChrysler Corporation dated May 13, 1987.)


999


(d) Under the provisions of § 661.7 (b) and (c)of this part, microcomputer equipment, in-cluding software, of foreign origin can beprocured by grantees (50 FR 18760, May 2,1985 and 51 FR 36126, October 8, 1986).

(e) Under the provisions of § 661.7(b) of thispart, a general public interest waiver fromthe Buy America requirements for ‘‘smallpurchases’’ (as defined in the ‘‘common grantrule,’’ at 49 CFR 18.36(d)) made by FTAgrantees with capital, planning, or operatingassistance.

[56 FR 932, Jan. 9, 1991, as amended at 60 FR37928, July 24, 1995, 61 FR 6302, Feb. 16, 1996]

§ 661.9 Application for waivers.

(a) This section sets out the applica-tion procedures for obtaining all waiv-ers, except those general exceptions setforth in this part for which individualapplications are unnecessary and thosecovered by section 165(b)(3) of the Act.The procedures for obtaining an excep-tion covered by section 165(b)(3) are setforth in § 661.11 of this part.

(b) A bidder who seeks to establishgrounds for an exception must seek theexception, in a timely manner, throughthe grantee.

(c) Except as provided in paragraph(d) of this section, only a grantee mayrequest a waiver. The request must bein writing, include facts and justifica-tion to support the waiver, and be sub-mitted to the Administrator throughthe appropriate Regional Office.

(d) FTA will consider a request for awaiver from a potential bidder or sup-plier only if the waiver is being soughtunder § 661.7 (f) or (g) of this part.

(e) The Administrator will issue awritten determination setting forththe reasons for granting or denying theexception request. Each request for anexception, and FTA’s action on the re-quest, are available for public inspec-tion under the provisions of 49 CFRpart 601, subpart C.

§ 661.11 Rolling stock procurements.

(a) The provisions of § 661.5 do notapply to the procurement of buses andother rolling stock (including traincontrol, communication, and tractionpower equipment), if the cost of compo-nents produced in the United States ismore than 60 percent of the cost of allcomponents and final assembly takesplace in the United States.

(b) The domestic content require-ments in paragraph (a) of this sectionalso apply to the domestic content re-quirements for components set forth inparagraphs (i), (j), and (l) of this sec-tion.

(c) A component is any article, mate-rial, or supply, whether manufacturedor unmanufactured, that is directly in-corporated into an end product at thefinal assembly location.

(d) A component may be manufac-tured at the final assembly location ifthe manufacturing process to producethe component is an activity separateand distinct from the final assembly ofthe end product.

(e) A component is considered to bemanufactured if there are sufficient ac-tivities taking place to advance thevalue or improve the condition of thesubcomponents of that component;that is, if the subcomponents have beensubstantially transformed or mergedinto a new and functionally differentarticle.

(f) Except as provided in paragraph(k) of this section, a subcomponent isany article, material, or supply, wheth-er manufactured or unmanufactured,that is one step removed from a compo-nent (as defined in paragraph (c) of thissection) in the manufacturing processand that is incorporated directly into acomponent.

(g) For a component to be of domes-tic origin, more that 60 percent of thesubcomponents of that component, bycost, must be of domestic origin, andthe manufacture of the componentmust take place in the United States.If, under the terms of this part, a com-ponent is determined to be of domesticorigin, its entire cost may be used incalculating the cost of domestic con-tent of an end product.

(h) A subcomponent is of domesticorigin if it is manufactured in theUnited States.

(i) If a subcomponent manufacturedin the United States is exported for in-clusion in a component that is manu-factured outside the United States andit receives tariff exemptions under theprocedures set forth in 19 CFR 10.11through 10.24, the subcomponent re-tains its domestic identity and can beincluded in the calculation of the do-mestic content of an end product even


1000

49 CFR Ch. VI (10–1–99 Edition)§ 661.11

if such a subcomponent represents lessthan 60 percent of the cost of a par-ticular component.

(j) If a subcomponent manufacturedin the United States is exported for in-clusion in a component manufacturedoutside the United States and it doesnot receive tariff exemption under theprocedures set forth in 19 CFR 10.11through 10.24, the subcomponent losesits domestic identity and cannot be in-cluded in the calculation of the domes-tic content of an end product.

(k) Raw materials produced in theUnited States and then exported for in-corporation into a component are notconsidered to be a subcomponent forthe purpose of calculating domesticcontent. The value of such raw mate-rials is to be included in the cost of theforeign component.

(l) If a component is manufactured inthe United States, but contains lessthan 60 percent domestic subcompo-nents, by cost, the cost of the domesticsubcomponents and the cost of manu-facturing the component may be in-cluded in the calculation of the domes-tic content of the end product.

(m) For purposes of this section, ex-cept as provided in paragraph (o) ofthis section:

(1) The cost of a component or a sub-component is the price that a bidder orofferor must pay to a subcontractor orsupplier for that component or sub-component. Transportation costs tothe final assembly location must be in-cluded in calculating the cost of for-eign components and subcomponents.

(2) If a component or subcomponentis manufactured by the bidder or offer-or, the cost of the component is thecost of labor and materials incor-porated into the component or sub-component, an allowance for profit,and the administrative and overheadcosts attributable to that componentor subcomponent under normal ac-counting principles.

(n) The cost of a component of for-eign origin is set using the foreign ex-change rate at the time the bidder orofferor executes the appropriate BuyAmerica certificate.

(o) The cost of a subcomponent thatretains its domestic identity consistentwith paragraph (j) of this section shallbe the cost of the subcomponent when

last purchased, f.o.b. United Statesport of exportation or point of bordercrossing as set out in the invoice andentry papers or, if no purchase wasmade, the value of the subcomponentat the time of its shipment for expor-tation, f.o.b. United States port of ex-portation or point of border crossing asset out in the invoice and entry papers.

(p) In accordance with 49 U.S.C.5323(j), labor costs involved in final as-sembly shall not be included in calcu-lating component costs.

(q) The actual cost, not the bid price,of a component is to be considered incalculating domestic content.

(r) Final assembly is the creation ofthe end product from individual ele-ments brought together for that pur-pose through application of manufac-turing processes. If a system is beingprocured as the end product by thegrantee, the installation of the systemqualifies as final assembly.

(s) An end product means any itemsubject to 49 U.S.C. 5323(j) that is to beacquired by a grantee, as specified inthe overall project contract.

(t) Train control equipment includes,but is not limited to, the followingequipment:(1) Mimic board in central control(2) Dispatcher’s console(3) Local control panels(4) Station (way side) block control

relay cabinets(5) Terminal dispatcher machines(6) Cable/cable trays(7) Switch machines(8) Way side signals(9) Impedance bonds(10) Relay rack bungalows(11) Central computer control(12) Brake equipment(13) Brake systems

(u) Communication equipment in-cludes, but is not limited to, the fol-lowing equipment:(1) Radios(2) Space station transmitter and re-

ceivers(3) Vehicular and hand-held radios(4) PABX telephone switching equip-

ment(5) PABX telephone instruments(6) Public address amplifiers(7) Public address speakers(8) Cable transmission system cable


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(9) Cable transmission system multi-plex equipment

(10) Communication console at centralcontrol

(11) Uninterruptible power supply in-verters/rectifiers

(12) Uninterruptible power supply bat-teries

(13) Data transmission system centralprocessors

(14) Data transmission system remoteterminals

(15) Line printers for data transmissionsystem

(16) Communication system monitortest panel

(17) Security console at central control(v) Traction power equipment in-

cludes, but is not limited to the fol-lowing:(1) Primary AC switch gear(2) Primary AC transformer rectifiers(3) DC switch gear(4) Traction power console and CRT

display system at central control(5) Bus ducts with buses (AC and DC)(6) Batteries(7) Traction power rectifier assemblies(8) Distribution panels (AC and DC)(9) Facility step-down transformers(10) Motor control centers (facility use

only)(11) Battery chargers(12) Supervisory control panel(13) Annunciator panels(14) Low voltage facility distribution

switch board(15) DC connect switches(16) Negative bus boxes(17) Power rail insulators(18) Power cables (AC and DC)(19) Cable trays(20) Instrumentation for traction power

equipment(21) Connectors, tensioners, and

insulators for overhead power wiresystems

(22) Negative drainage boards(23) Inverters(24) Traction motors(25) Propulsion gear boxes(26) Third rail pick-up equipment(27) Pantographs

(w) The power or third rail is notconsidered traction power equipmentand is thus subject to the requirementsof 49 U.S.C. 5323(j) and the require-ments of § 661.5.

(x) A bidder on a contract for an itemcovered by 49 U.S.C. 5323(j) who willcomply with section 165(b)(3) and regu-lations in this section is not requiredto follow the application for waiverprocedures set out in § 661.9. In lieu ofthese procedures, the bidder must sub-mit the appropriate certificate re-quired by § 661.12.

APPENDIX A TO § 661.11—GENERAL

WAIVERS

(a) The provisions of § 661.11 of this part donot apply when foreign sourced spare partsfor buses and other rolling stock (includingtrain control, communication, and tractionpower equipment) whose total cost is 10 per-cent or less of the overall project contractcost are being procured as part of the samecontract for the major capital item.

(b) [Reserved]

APPENDIX B TO § 661.11—TYPICAL

COMPONENTS OF BUSES

The following is a list of items that typi-cally would be considered components of abus. This list is not all-inclusive.

Engines, transmissions, front axle assem-blies, rear axle assemblies, drive shaft as-semblies, front suspension assemblies, rearsuspension assemblies, air compressor andpneumatic systems, generator/alternator andelectrical systems, steering system assem-blies, front and rear air brake assemblies, airconditioning compressor assemblies, air con-ditioning evaporator/condenser assemblies,heating systems. passenger seats, driver’sseat assemblies, window assemblies, en-trance and exit door assemblies, door controlsystems, destination sign assemblies, inte-rior lighting assemblies, front and rear endcap assemblies, front and rear bumper as-semblies, specialty steel (structural steeltubing, etc.) aluminum extrusions, alu-minum, steel or fiberglass exterior panels,and interior trim, flooring, and floor cov-erings.

APPENDIX C TO § 661.11—TYPICAL

COMPONENTS OF RAIL ROLLING STOCK

The following is a list of items that typi-cally would be considered components of railrolling stock. This list is not all inclusive.

Car shells, main transformer, pantographs,traction motors, propulsion gear boxes, inte-rior linings, acceleration and braking resis-tors, propulsion controls, low voltage auxil-iary power supplies, air conditioning equip-ment, air brake compressors, brake controls,


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49 CFR Ch. VI (10–1–99 Edition)§ 661.12

foundation brake equipment, articulation as-semblies, train control systems, window as-semblies, communication equipment, light-ing, seating, doors, door actuators, and con-trols, couplers and draft gear, trucks, jour-nal bearings, axles, diagnostic equipment,and third rail pick-up equipment.

[61 FR 6302, Feb. 16, 1996, as amended at 62FR 40954, July 31, 1997]

§ 661.12 Certification requirement forprocurement of buses, other rollingstock and associated equipment.

If buses or other rolling stock (in-cluding train control, communication,and traction power equipment) arebeing procured, the appropriate certifi-cate as set forth below shall be com-pleted and submitted by each bidder inaccordance with the requirement con-tained in § 661.13(b) of this part.

Certificate of Compliance With Section 165(b)(3)

The bidder hereby certifies that it willcomply with the requirements of section165(b)(3), of the Surface Transportation As-sistance Act of 1982, as amended, and the reg-ulations of 49 CFR 661.11.


Certificate for Non-Compliance with Section165(b)(3)

The bidder hereby certifies that it cannotcomply with the requirements of section165(b)(3) of the Surface Transportation As-sistance Act of 1982, as amended, but mayqualify for an exception to the requirementconsistent with section 165(b)(2) or (b)(4) ofthe Surface Transportation Assistance Act,as amended, and regulations in 49 CFR 661.7.


§ 661.13 Grantee responsibility.

(a) The grantee shall adhere to theBuy America clause set forth in itsgrant contract with FTA.

(b) The grantee shall include in itsbid specification for procurement with-in the scope of these regulations an ap-propriate notice of the Buy Americaprovision. Such specifications shall re-quire, as a condition of responsiveness,that the bidder or offeror submit withthe bid a completed Buy America cer-

tificate in accordance with § 661.6 or§ 661.12 of this part, as appropriate.

(c) Whether or not a bidder or offerorcertifies that it will comply with theapplicable requirement, such bidder orofferer is bound by its original certifi-cation and is not permitted to changeits certification after bid opening. Abidder or offeror that certifies that itwill comply with the applicable BuyAmerica requirements is not eligiblefor a waiver of those requirements.

§ 661.15 Investigation procedures.(a) It is presumed that a bidder who

has submitted the required Buy Amer-ica certificate is complying with theBuy America provision. A false certifi-cation is a criminal act in violation of18 U.S.C. 1001.

(b) Any party may petition FTA toinvestigate the compliance of a suc-cessful bidder with the bidder’s certifi-cation. That party (‘‘the petitioner’’)must include in the petition a state-ment of the grounds of the petition andany supporting documentation. If FTAdetermines that the information pre-sented in the petition indicates thatthe presumption in paragraph (a) ofthis section has been overcome, FTAwill initiate an investigation.

(c) In appropriate circumstances,FTA may determine on its own to ini-tiate an investigation without receiv-ing a petition from a third party.

(d) When FTA determines under para-graph (b) or (c) of this section to con-duct an investigation, it requests thatthe grantee require the successful bid-der to document its compliance withits Buy America certificate. The suc-cessful bidder has the burden of proofto establish that it is in compliance.Documentation of compliance is basedon the specific circumstances of eachinvestigation, and FTA will specify thedocumentation required in each case.

(e) The grantee shall reply to the re-quest under paragraph (d) of this sec-tion within 15 working days of the re-quest. The investigated party may cor-respond directly with FTA during thecourse of investigation, if it informsthe grantee that it intends to do so,and if the grantee agrees to such actionin writing. The grantee must informFTA, in writing, that the investigatedparty will respond directly to FTA. An


1003


investigated party may provide con-fidential or proprietary information(see paragraph (l) of this section) di-rectly to FTA while providing other in-formation required to be submitted aspart of the investigation through thegrantee.

(f) Any additional information re-quested or required by FTA must besubmitted within 5 working days afterthe receipt of such request unless spe-cifically exempted by FTA.

(g) The grantee’s reply (or that of thebidder) will be transmitted to the peti-tioner. The petitioner may submitcomments on the reply to FTA within10 working days after receipt of thereply. The grantee and the low bidderwill be furnished with a copy of the pe-titioner’s comments, and their com-ments must be received by FTA within5 working days after receipt of the pe-titioner’s comments.

(h) The failure of a party to complywith the time limits stated in this sec-tion may result in resolution of the in-vestigation without consideration ofuntimely filed comments.

(i) During the course of an investiga-tion, with appropriate notification toaffected parties, FTA may conduct sitevisits of manufacturing facilities andfinal assembly locations as it considersappropriate.

(j) FTA will, upon request, makeavailable to any interested party infor-mation bearing on the substance of theinvestigation which has been sub-mitted by the petitioner, interestedparties or grantees, except to the ex-tent that withholding of information ispermitted or required by law or regula-tion.

(k) If a party submitting informationconsiders that the information sub-mitted contains proprietary materialwhich should be withheld, a statementadvising FTA of this fact may be in-cluded, and the alleged proprietary in-formation must be identified whereverit appears. Any comments on the infor-mation provided shall be submittedwithin a maximum of ten days.

(l) For purposes of paragraph (j) ofthis section, confidential or propri-etary material is any material or datawhose disclosure could reasonably beexpected to cause substantial competi-tive harm to the party claiming that

the material is confidential or propri-etary.

(m) When a petition for investigationhas been filed before award, the grant-ee will not make an award before theresolution of the investigation, unlessthe grantee determines that:

(1) The items to be procured are ur-gently required;

(2) Delivery of performance will beunduly delayed by failure to make theaward promptly; or

(3) Failure to make prompt awardwill otherwise cause undue harm to thegrantee or the Federal Government.

(n) In the event that the grantee de-termines that the award is to be madeduring the pendency of an investiga-tion, the grantee will notify FTA be-fore to making such award. FTA re-serves the right not to participate inthe funding of any contract awardedduring the pendency of an investiga-tion.

(o) Initial decisions by FTA will be inwritten form. Reconsideration of aninitial decision of FTA may be re-quested by any party involved in an in-vestigation. FTA will only reconsider adecision only if the party requestingreconsideration submits new mattersof fact or points of law that were notknown or available to the party duringthe investigation. A request for recon-sideration of a decision of FTA shall befiled not later than ten (10) workingdays after the initial written decision.A request for reconsideration will besubject to the procedures in this sec-tion consistent with the need forprompt resolution of the matter.

§ 661.17 Failure to comply with certifi-cation.

If a successful bidder fails to dem-onstrate that it is in compliance withits certification, it will be required totake the necessary steps in order toachieve compliance. If a bidder takesthese necessary steps, it will not be al-lowed to change its original bid price.If a bidder does not take the necessarysteps, it will not be awarded the con-tract if the contract has not yet beenawarded, and it is in breach of contractif a contract has been awarded.


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49 CFR Ch. VI (10–1–99 Edition)§ 661.18

§ 661.18 Intentional violations.A person shall be ineligible to receive

any contract or subcontract made withfunds authorized under the IntermodalSurface Transportation Efficiency Actof 1991 pursuant to part 29 of this titleif it has been determined by a court orFederal agency that the person inten-tionally—

(a) Affixed a label bearing a ‘‘Made inAmerica’’ inscription, or an inscriptionwith the same meaning, to a productnot made in the United States, but soldin or shipped to the United States andused in projects to which this sectionapplies, or

(b) Otherwise represented that anysuch product was produced in theUnited States.

[61 FR 6303, Feb. 16, 1996]

§ 661.19 Sanctions.A willful refusal to comply with a

certification by a successful biddermay lead to the initiation of debar-ment or suspension proceedings underpart 29 of this title.

§ 661.20 Rights of third parties.The sole right of any third party

under the Buy America provision is topetition FTA under the provisions of§ 661.15 of this part. No third party hasany additional right, at law or equity,for any remedy including, but not lim-ited to, injunctions, damages, or can-cellation of the Federal grant or con-tracts of the grantee.

§ 661.21 State Buy America provisions.(a) Except as provided in paragraph

(b) of this section, any State may im-pose more stringent Buy America orbuy national requirements than con-tained in section 165 of the Act and theregulations in this part.

(b) FTA will not participate in con-tracts governed by the following:

(1) State Buy America or Buy Na-tional preference provisions which arenot as strict as the Federal require-ments.

(2) State and local Buy National orBuy America preference provisionswhich are not explicitly set out underState law. For example, administrativeinterpretations of non-specific Statelegislation will not control.

(3) State and local Buy Local pref-erence provisions.

PART 663—PRE-AWARD AND POST-DELIVERY AUDITS OF ROLLINGSTOCK PURCHASES

Subpart A—General

Sec.663.1 Purpose.663.3 Scope.663.5 Definitions.663.7 Certification of compliance to FTA.663.9 Audit limitations.663.11 Audit financing.663.13 Buy America requirements.663.15 Compliance.

Subpart B—Pre-Award Audits

663.21 Pre-award audit requirements.663.23 Description of pre-award audit.663.25 Pre-award Buy America certification.663.27 Pre-award purchaser’s requirements

certification.

Subpart C—Post-Delivery Audits

663.31 Post-delivery audit requirements.663.33 Description of post-delivery audit.663.35 Post-delivery Buy America certifi-

cation.663.37 Post-delivery purchaser’s require-

ments certification.663.39 Post-delivery audit review.

Subpart D—Certification of ComplianceWith or Inapplicability of Federal MotorVehicle Safety Standards

663.41 Certification of compliance with Fed-eral motor vehicle safety standards.

663.43 Certification that Federal motor ve-hicle standards do not apply.

AUTHORITY: 49 U.S.C. 1608(j); 23 U.S.C.103(e)(4); Pub. L. 96–184, 93 Stat. 1320; Pub. L.101–551, 104 Stat. 2733; 49 CFR 1.51.

SOURCE: 56 FR 48395, Sept. 24, 1991, unlessotherwise noted.

Subpart A—General

§ 663.1 Purpose.

This part implements section 12(j) ofthe Federal Mass Transit Act of 1964,as amended, which was added by sec-tion 319 of the 1987 Surface Transpor-tation and Uniform Relocation Assist-ance Act (Pub. L. 100–17). Section 12(j)


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requires the Federal Transit Adminis-tration, by delegation from the Sec-retary of Transportation, to issue regu-lations requiring pre-award and post-delivery audits when a recipient ofFederal financial assistance purchasesrolling stock with funds made avail-able under the Federal Mass TransitAct, as amended.

§ 663.3 Scope.

This part applies to a recipient pur-chasing rolling stock to carry pas-sengers in revenue service with fundsmade available under sections 3, 9, 18,and 16(b)(2) of the Federal Mass TransitAct, as amended; 23 U.S.C. 103(e)(4); andsection 14 of the National CapitalTransportation Act of 1969, as amend-ed.


As used in this part—(a) Pre-award means that period in

the procurement process before the re-cipient enters into a formal contractwith the supplier.

(b) Post-delivery means the time pe-riod in the procurement process fromwhen the rolling stock is delivered tothe recipient until title to the rollingstock is transferred to the recipient orthe rolling stock is put into revenueservice, whichever is first.

(c) Recipient means a recipient ofFederal financial assistance from FTA.

(d) Revenue service means operation ofrolling stock for transportation of fare-paying passengers as anticipated bythe recipient.

(e) Rolling stock means buses, vans,cars, railcars, locomotives, trolley carsand buses, ferry boats, and vehiclesused for guideways and incline planes.

(f) Audit means a review resulting ina report containing the necessary cer-tifications of compliance with BuyAmerica standards, purchaser’s re-quirements specifications, and, whereappropriate, a manufacturer’s certifi-cation of compliance with or inapplica-bility of the Federal Motor VehicleSafety Standards, required by section319 of STURAA and this part.

(g) FTA means the Federal TransitAdministration.

§ 663.7 Certification of compliance toFTA.

A recipient purchasing revenue serv-ice rolling stock with funds obligatedby FTA on or after October 24, 1991,must certify to FTA that it will con-duct or cause to be conducted pre-award and post-delivery audits as pre-scribed in this part. In addition, such arecipient must maintain on file thecertifications required under subpartsB, C, and D of this part.

§ 663.9 Audit limitations.(a) An audit under this part is lim-

ited to verifying compliance with(1) Applicable Buy America require-

ments [section 165 of the SurfaceTransportation Assistance Act of 1982,as amended,]; and

(2) Solicitation specification require-ments of the recipient.

(b) An audit under this part includes,where appropriate, a copy of a manu-facturer’s self certification informa-tion that the vehicle complies withFederal Motor Vehicle Safety Stand-ards or a certification that such stand-ards are inapplicable.

(c) An audit conducted under thispart is separate from the single annualaudit requirement established by Officeof Management and Budget Circular A–128, ‘‘Audits of State and Local Govern-ments,’’ dated May 16, 1985.

§ 663.11 Audit financing.A recipient purchasing revenue roll-

ing stock with FTA funds may chargethe cost of activities required by thispart to the grant which FTA made forsuch purchase.

§ 663.13 Buy America requirements.A Buy America certification under

this part shall be issued in addition toany certification which may be re-quired by part 661 of this title. Nothingin this part precludes FTA from con-ducting a Buy America investigationunder part 661 of this title.

§ 663.15 Compliance.A recipient subject to this part shall

comply with all applicable require-ments of this part. Such compliance isa condition of receiving Federal finan-cial assistance from FTA. A recipient


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49 CFR Ch. VI (10–1–99 Edition)§ 663.21

determined not to be in compliancewith this part will be subject to the im-mediate suspension, withholding, or re-payment of Federal financial assist-ance from FTA or other appropriate ac-tions unless and until it comes intocompliance with this part.

Subpart B—Pre-Award Audits§ 663.21 Pre-award audit require-

ments.A recipient purchasing revenue serv-

ice rolling stock with FTA funds mustensure that a pre-award audit underthis part is complete before the recipi-ent enters into a formal contract forthe purchase of such rolling stock.

§ 663.23 Description of pre-awardaudit.

A pre-award audit under this part in-cludes—

(a) A Buy America certification asdescribed in § 663.25 of this part;

(b) A purchaser’s requirements cer-tification as described in § 663.27 of thispart; and

(c) Where appropriate, a manufactur-er’s Federal Motor Vehicle Safety cer-tification information as described in§ 663.41 or § 663.43 of this part.

§ 663.25 Pre-award Buy America cer-tification.

For purposes of this part, a pre-awardBuy America certification is a certifi-cation that the recipient keeps on filethat—

(a) There is a letter from FTA whichgrants a waiver to the rolling stock tobe purchased from the Buy America re-quirements under section 165(b)(1),(b)(2), or (b)(4) of the Surface Transpor-tation Assistance Act of 1982, asamended; or

(b) The recipient is satisfied that therolling stock to be purchased meets therequirements of section 165(a) or (b)(3)of the Surface Transportation Assist-ance Act of 1982, as amended, after hav-ing reviewed itself or through an auditprepared by someone other than themanufacturer or its agent documenta-tion provided by the manufacturerwhich lists—

(1) Component and subcomponentparts of the rolling stock to be pur-chased identified by manufacturer of

the parts, their country of origin andcosts; and

(2) The location of the final assemblypoint for the rolling stock, including adescription of the activities that willtake place at the final assembly pointand the cost of final assembly.

§ 663.27 Pre-award purchaser’s re-quirements certification.

For purposes of this part, a pre-awardpurchaser’s requirements certificationis a certification a recipient keeps onfile that—

(a) The rolling stock the recipient iscontracting for is the same product de-scribed in the purchaser’s solicitationspecification; and

(b) The proposed manufacturer is aresponsible manufacturer with the ca-pability to produce a vehicle thatmeets the recipient’s specification setforth in the recipient’s solicitation.

Subpart C—Post-Delivery Audits

§ 663.31 Post-delivery audit require-ments.

A recipient purchasing revenue serv-ice rolling stock with FTA funds mustensure that a post-delivery audit underthis part is complete before title to therolling stock is transferred to the re-cipient.

§ 663.33 Description of post-deliveryaudit.

A post-delivery audit under this partincludes—

(a) A post-delivery Buy America cer-tification as described in § 663.35 of thispart;

(b) A post-delivery purchaser’s re-quirements certification as describedin § 663.37 of this part; and

(c) When appropriate, a manufactur-er’s Federal Motor Vehicle SafetyStandard self-certification informationas described in § 663.41 or § 663.43 of thispart.

§ 663.35 Post-delivery Buy Americacertification.

For purposes of this part, a post-de-livery Buy America certification is acertification that the recipient keepson file that—


1007


(a) There is a letter from FTA whichgrants a waiver to the rolling stock re-ceived from the Buy America require-ments under sections 165 (b)(1), or (b)(4)of the Surface Transportation Assist-ance Act of 1982, as amended; or

(b) The recipient is satisfied that therolling stock received meets the re-quirements of section 165 (a) or (b)(3) ofthe Surface Transportation AssistanceAct of 1982, as amended, after havingreviewed itself or by means of an auditprepared by someone other than themanufacturer or its agent documenta-tion provided by the manufacturerwhich lists—

(1) Components and subcomponentparts of the rolling stock identified bymanufacturer of the parts, their coun-try of origin and costs; and

(2) The actual location of the finalassembly point for the rolling stock in-cluding a description of the activitieswhich took place at the final assemblypoint and the cost of the final assem-bly.

§ 663.37 Post-delivery purchaser’s re-quirements certification.

For purposes of this part, a post-de-livery purchaser’s requirements certifi-cation is a certification that the recipi-ent keeps on file that—

(a) Except for procurements coveredunder paragraph (c) in this section, aresident inspector (other than an agentor employee of the manufacturer) wasat the manufacturing site throughoutthe period of manufacture of the roll-ing stock to be purchased and mon-itored and completed a report on themanufacture of such rolling stock.Such a report, at a minimum, shall—

(1) Provide accurate records of all ve-hicle construction activities; and

(2) Address how the construction andoperation of the vehicles fulfills thecontract specifications.

(b) After reviewing the report re-quired under paragraph (a) of this sec-tion, and visually inspecting and roadtesting the delivered vehicles, the vehi-cles meet the contract specifications.

(c) For procurements of ten or fewerbuses, or any number of primary manu-facturer standard production and un-modified vans, after visually inspectingand road testing the vehicles, the vehi-cles meet the contract specifications.

§ 663.39 Post-delivery audit review.

(a) If a recipient cannot complete apost-delivery audit because the recipi-ent or its agent cannot certify BuyAmerica compliance or that the rollingstock meets the purchaser’s require-ments specified in the contract, therolling stock may be rejected and finalacceptance by the recipient will not berequired. The recipient may exerciseany legal rights it has under the con-tract or at law.

(b) This provision does not precludethe recipient and manufacturer fromagreeing to a conditional acceptance ofrolling stock pending manufacturer’scorrection of deviations within a rea-sonable period of time.

Subpart D—Certification of Com-pliance With or Inapplicabilityof Federal Motor VehicleSafety Standards

§ 663.41 Certification of compliancewith Federal motor vehicle safetystandards.

If a vehicle purchased under this partis subject to the Federal Motor VehicleSafety Standards issued by the Na-tional Highway Traffic Safety Admin-istration in part 571 of this title, a re-cipient shall keep on file its certifi-cation that it received, both at the pre-award and post-delivery stage, a copyof the manufacturer’s self-certificationinformation that the vehicle complieswith relevant Federal Motor VehicleSafety Standards.

§ 663.43 Certification that Federalmotor vehicle standards do notapply.

(a) Except for rolling stock subject toparagraph (b) of this section, if a vehi-cle purchased under this part is notsubject to the Federal Motor VehicleSafety Standards issued by the Na-tional Highway Traffic Safety Admin-istration in part 571 of this title, therecipient shall keep on file its certifi-cation that it received a statement tothat effect from the manufacturer.

(b) This subpart shall not apply torolling stock that is not a motor vehi-cle.


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PART 665—BUS TESTING

Subpart A—General

Sec.665.1 Purpose.665.3 Scope.665.5 Definitions.665.7 Grantee certification of compliance.

Subpart B—Bus Testing Procedures

665.11 Testing requirements.665.13 Test report and manufacturer certifi-

cation.

Subpart C—Operations

665.21 Scheduling.665.23 Fees.665.25 Transportation of vehicle.665.27 Procedures during testing.

APPENDIX A TO PART 665—TESTS TO BE PER-FORMED AT THE BUS TESTING FACILITY

AUTHORITY: Federal Transit Act of 1964, asamended, 49 U.S.C. 1601 et seq., 1608(h); sec-tion 317, Surface Transportation and Uni-form Relocation Assistance Act of 1987; and49 CFR 1.51.

SOURCE: 57 FR 33397, July 28, 1992, unlessotherwise noted.

Subpart A—General

§ 665.1 Purpose.An applicant for Federal financial as-

sistance under the Federal Transit Actfor the purchase or lease of buses withfunds obligated by the FTA after Sep-tember 30, 1989, must certify to theFTA that any new bus model acquiredwith such assistance has been tested inaccordance with this part. This partcontains the information necessary fora recipient to ensure compliance withthis provision.

§ 665.3 Scope.(a) This part applies to a recipient of

Federal financial assistance under sec-tions 3, 9, 16(b)(2), or 18 of the FT Act,and, except as provided in subsections(b), (c), and (d) is effective October 1,1989;

(b) The provisions of section665.11(e)(3) are effective November 8,1990;

(c) The provisions in sections 665.11(c), (d), and (f) concerning partial test-ing are effective August 27, 1992; and

(d) The provisions in §§ 665.11(e) (4)and (5) concerning the last two cat-egories of buses which must be tested,apply as follows:

(1) For vehicles that are manufac-tured from modified mass-producedchassis or vans, or manufactured fromnon-mass-produced chassis or vans,testing and a final report will be re-quired for all vehicles offered in re-sponse to advertisements for bids or re-quests for proposals issued on or afterJune 1, 1994.

(2) For vehicles manufactured fromunmodified mass-produced chassis,testing and a final report will be re-quired for all vehicles offered in re-sponse to advertisements for bids or re-quests for proposals issued on or afterOctober 1, 1994.

[57 FR 33397, July 28, 1992, as amended at 58FR 10990, Feb. 23, 1993; 58 FR 58733, Nov. 3,1993]


As used in this part—Administrator means the Adminis-

trator of the Federal Transit Adminis-tration or designee.

Bus means a rubber-tired automotivevehicle used for the provision of masstransportation service by or for a re-cipient.

Bus model means a bus design or vari-ation of a bus design usually des-ignated by the manufacturer by a spe-cific name and/or model number.

Bus testing facility means a testing fa-cility established by renovation of a fa-cility constructed with Federal assist-ance at Altoona, Pennsylvania, undersection 317(b)(1) of the Surface Trans-portation and Uniform Relocation As-sistance Act of 1987, and includes prov-ing ground facilities operated in con-nection with the facility.

FT Act means the Federal TransitAct, as amended (49 U.S.C. app. 1601 etseq.).

Major change in chassis design means,for vehicles manufactured on a massproduced chassis, a change in framestructure, material or configuration, ora change in chassis suspension type.

Major change in components means:(1) For those vehicles that are not

manufactured on a mass producedchassis, a change in a vehicle’s engine,


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axle, transmission, suspension, orsteering components;

(2) For those that are manufacturedon a mass produced chassis, a changein the vehicle’s chassis from one majordesign to another.

Major change in configuration means achange which may have a significantimpact on vehicle handling and sta-bility, or structural integrity.

Mass produced van or chassis means avan or chassis that has or is projectedto have an annual production rate of20,000 or more units.

Mass transportation service means theoperation of a vehicle which providesgeneral or special service to the publicon a regular and continuing basis.

Modified mass-produced chassis or vanmeans a vehicle that is manufacturedfrom an incomplete, partially assem-bled mass-produced chassis or van asprovided by an OEM to a small busmanufacturer. This includes vehicleswhose chassis structure has been modi-fied to include: The addition of a tan-dem or tag axle; the installation of adrop or lowered floor; changes to theGVWR from the OEM rating; or othermodifications that are not made instrict conformance with the OEM’smodifications guidelines.

New bus model means a bus modelwhich—

(1) Has not been used in mass transitservice in the United States before Oc-tober 1, 1988; or

(2) Has been used in such service butwhich after September 30, 1988, is beingproduced with a major change in con-figuration or components.

Non-mass-produced chassis or vanmeans a vehicle that is manufacturedfrom an incomplete, partially assem-bled chassis or van as provided by anOEM to a secondary small bus manu-facturer, and where the annual produc-tion rate of the OEM chassis or van isless than 20,000 units.

Original Equipment Manufacturer(OEM) means the original manufac-turer of a chassis or van supplied as acomplete or incomplete vehicle to asmall bus manufacturer.

Partial testing means the performanceof those bus tests which may yield sig-nificantly different data from that ob-tained in previous bus testing con-ducted at the bus testing facility.

Recipient means an entity which re-ceives funds under sections 3, 9,16(b)(2), or 18 of the FT Act, either di-rectly from FTA or through a State ad-ministering agency.

Small bus manufacturer means a sec-ondary market assembler that acquiresa chassis or van from an original equip-ment manufacturer for subsequentmodification/assembly and sale as 5-year/150,000-mile and/or 4-year/100,000-mile minimum service life vehicles.

Test report means the final documentprepared by the operator of the bustesting facility stating the results ofthe tests performed on each bus.

Unmodified mass-produced chassismeans a vehicle that is manufacturedfrom an incomplete, partially assem-bled mass-produced chassis as providedby an OEM to a small bus manufac-turer. This includes vehicles whosechassis structure has either not beenmodified, or is modified in strict con-formance with the OEM’s modificationguidelines. The addition of a tandem ortag axle would exclude a bus modelfrom this definition.

Unmodified mass-produced van meansa vehicle that is mass-produced, com-plete and fully assembled as providedby an OEM. This includes vans withraised roofs, and/or wheelchair lifts, orramps that are installed by the OEM,or by a party other than the OEM pro-vided that the installation of thesecomponents is completed in strict con-formance with the OEM modificationguidelines.

[57 FR 33397, July 28, 1992, as amended at 58FR 58733, Nov. 3, 1993]

§ 665.7 Grantee certification of compli-ance.

(a) In each application to the FTA forthe purchase or lease of buses, a recipi-ent shall certify that any new busmodel, or any bus model with a majorchange in configuration or compo-nents, to be acquired or leased withfunds obligated by the FTA after Sep-tember 30, 1989, will be tested at thebus testing facility, and a test reportprovided before final acceptance of thefirst vehicle by the recipient.

(b) It is the responsibility of the re-cipient in dealing with a manufacturer,to determine whether a vehicle to beacquired is subject to these procedures.


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49 CFR Ch. VI (10–1–99 Edition)§ 665.11

Subpart B—Bus Testing Procedures§ 665.11 Testing requirements.

(a) A new bus model to be tested atthe bus testing facility shall—

(1) Be a single model;(2) Meet all applicable Federal Motor

Vehicle Safety Standards, as defined bythe National Highway Traffic SafetyAdministration in part 571 of this title;

(3) Be substantially fabricated andassembled by techniques and toolingthat will be used in production of sub-sequent buses of that model.

(b) If the new bus model had not beenpreviously tested at the bus testing fa-cility, then the new bus model shallundergo the full tests requirements formaintainability, reliability, safety,performance, structural integrity, fueleconomy, and noise;

(c) If the new bus model had not beenpreviously tested at the bus testing fa-cility and is being produced on a massproduced chassis that has been pre-viously tested on another bus model atthe bus testing facility, then the newbus model may undergo partial testingrequirements;

(d) If the new bus model had beenpreviously tested at the bus testing fa-cility, then the new bus model may un-dergo partial testing requirements.

(e) The following vehicle types shallbe tested:

(1) Minimum service life of 12 yearsor 500,000 miles—typified by heavy dutylarge buses, approximately 35–40 foot,as well as articulated buses.

(2) Minimum service life of ten yearsor 350,000 miles—typified by heavy dutysmall buses, approximately 30 foot.

(3) Minimum service life of sevenyears or 200,000 miles—typified by me-dium duty mid-size buses, approxi-mately 25–35 foot.

(4) Minimum service life of five yearsor 150,000 miles—typified by light dutymid-size buses, approximately 25–35foot.

(5) Minimum service life of four yearsor 100,000 miles—typified by light dutysmall buses, cutaways, and modifiedvans, approximately 16–28 foot.

(f) Tests performed in a higher serv-ice life category (i.e., longer servicelife) need not be repeated when thesame bus model is used in lesser servicelife applications. However, the use of a

bus model in a service life applicationhigher than it has been tested for maymake the bus subject to the bus testingrequirements.

(g) The operator of the facility shalldevelop a test plan for the testing ofvehicles at the facility, which gen-erally follows the guidelines set forthin appendix A of this part.

§ 665.13 Test report and manufacturercertification.

(a) Upon completion of testing, theoperator of the facility shall provide atest report to the entity that sub-mitted the bus for testing.

(b)(1) A manufacturer of a new busmodel or a bus produced with a majorchange in component or configurationshall provide a copy of the test reportto a recipient during the point in theprocurement process specified by therecipient.

(2) A manufacturer who releases a re-port under paragraph (b)(1) of this sec-tion also shall provide notice to the op-erator of the facility that the report isavailable to the public.

(c) If a bus model subject to a test re-port has a change that is not a majorchange under this part, the manufac-turer shall advise the recipient duringthe procurement process and shall in-clude description of the change and itsbasis for concluding that it is not amajor change.

(d) A test report shall be availablepublicly once the owner of the reportmakes it available during the recipi-ent’s procurement process. The oper-ator of the facility will have availablefor distribution copies of all the pub-licly available reports.

(e) The test report is the only infor-mation or documentation that will bemade available publicly in connectionwith any bus model tested at the facil-ity.

Subpart C—Operations

§ 665.21 Scheduling.

(a) A manufacturer may schedule avehicle for testing by contacting PennState’s Transportation Institute(PSTI) at the following address: The


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Federal Transit Admin., DOT Pt 665, App. A

Pennsylvania State University, Penn-sylvania Transportation Institute, Re-search Building B, University Park, PA16802, (814) 863–1889.

(b) Upon contacting PSTI, the manu-facturer will be provided the following:

(1) A draft contract for the testing;(2) A fee schedule; and(3) The draft test procedures that will

be conducted on the vehicle.(c) PSTI will provide final test proce-

dures to be conducted on the vehicle atthe time of contract execution.

(d) PSTI will process vehicles fortesting in the order in which the con-tracts are signed.

§ 665.23 Fees.

(a) Fees charged by the operator areaccording to a schedule approved bythe FTA, which include different feesfor partial testing.

(b) Fees will be prorated for a vehiclewithdrawn from the facility before thecompletion of testing.

§ 665.25 Transportation of vehicle.

A manufacturer is responsible fortransporting its vehicle to and fromthe facility at the beginning and com-pletion of the testing.

§ 665.27 Procedures during testing.

(a) The facility operator shall per-form all testing, consistent with estab-lished procedures at the facility andwith the test procedures provided tothe manufacturer at the time of con-tract execution.

(b) The manufacturer of a bus beingtested may terminate the test programat any time before the completion oftesting, and shall be charged a fee forthe tests performed.

(c) The operator shall perform allmaintenance and repairs on the testvehicle, consistent with manufacturersspecifications, unless the operator de-termines that the nature of the main-tenance or repair is best performed bythe manufacturer under the operator’ssupervision.

(d) The manufacturer may observe alltests. The manufacturer may not pro-vide maintenance or service unless re-quested to do so by the operator.

APPENDIX A TO PART 665—TESTS TO BEPERFORMED AT THE BUS TESTINGFACILITY

The seven tests to be performed on eachvehicle are required by STURAA and arebased in part on tests described in the FTAreport ‘‘First Article Transit Bus TestPlan’’, which is mentioned in the legislativehistory of section 317. When appropriate,SAE test procedures and other proceduresaccepted by the transit industry will be used.The seven tests are described in generalterms in the following paragraphs.

1. Maintainability

The maintainability test includes bus serv-icing, preventive maintenance, inspection,and repair. It also will include the removaland reinstallation of the engine and drivetrain components that would be expected torequire replacement during the bus’ normallife cycle. Much of the maintainability datawill be obtained during the bus durabilitytest at the proving ground. Up to twenty-fivepercent of the bus life will be simulated andthere will be servicing, preventive mainte-nance, and repair actions. These actions willbe done by test facility staff, although man-ufacturers will be allowed to maintain a rep-resentative on site during the testing. Testfacility staff may require a manufacturer toprovide vehicle servicing or repair, under thesupervision of the facility staff. Since theoperator will not become familiar with thedetailed design of all new bus models thatare tested, tests to determine the time andskill required to remove and reinstall an en-gine, a transmission, or other major propul-sion system components may require advicefrom the bus manufacturer. All routine andcorrective maintenance will be carried outby the test operator in accordance with themanufacturer’s specifications.

The maintainability test report will in-clude the frequency, personnel hours, and re-placement parts or supplies required for eachaction during the test. The accessibility ofselected components and other observationsthat could be important to a bus user will beincluded in the report.

2. Reliability

The question of reliability will be ad-dressed by recording all bus breakdowns dur-ing testing. It is recognized that with onetest bus it is not feasible to conduct statis-tical reliability tests. It is anticipated thatbus operation on the durability courseshould reveal the problems that would other-wise not be detected until much later duringscheduled transit service. The bus failures,repair time, and the actions required to getthe bus back into operation will be recordedin the report.


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49 CFR Ch. VI (10–1–99 Edition)Pt 665, App. A

3. Safety

The safety test will consist of a handlingand stability test. The handling and stabilitytest is an obstacle avoidance or double-lanechange test that will be performed at theproving ground. The double-lane changecourse will be different for each type of busand the speed could be different for each typeof bus. Coach speed will be held constantthroughout a given test run. Individual testruns will be made at increasing speeds up to45 mph or until the coach can no longer beoperated safely over the course, whicheverspeed is lower. Both left-and-right-hand lanechanges will be tested.

4. Performance

The performance test will be performed onthe proving ground and will measure accel-eration and gradeability with the test vehi-cle operated at seated load weight. Top speedalso will be measured if it can be done safelyon the track. The test will be performedusing a fifth wheel or equivalent and associ-ated instrumentation. The bus will be accel-erated at full throttle from standstill tomaximum safe speed on the track. The re-port will include a table of time required toaccelerate to each 10 mph increment of speedand when possible, the top speed. Thegradeability capabilities will be calculatedboth from the test data and a test from adead stop on a minimum of a 15 percentgrade.

5. Structural Integrity

Two different structural integrity testswill be performed. Structural strength anddistortion tests will be performed at thetesting facility in Altoona and structural du-rability tests will be performed at the prov-ing ground.

a. Structural Strength and Distortion Tests

(1) The structural strength and distortiontests will be conducted and will be differentfor each type of bus. For example, a shake-down of the bus structure will be conductedby loading and unloading the bus no morethan three times with a distributed loadequal to 2.5 times gross load. The bus thenwill be loaded with a distributed load togross vehicle weight. (Gross vehicle weight isa curb weight plus gross load.) Increase infloor deflection will be measured as the busweight is increased from curb weight togross vehicle weight. Then the bus will beloaded with a distributed load equal to 2.5times gross load. The bus then will be un-loaded and inspected for any permanent de-formation on the floor or coach structure.

(2) The bus will be loaded to gross vehicleweight, with one wheel on top of a 6-inch-

high curb and then in a 6-inch-deep pot hole.This test will be repeated for all four wheels.The test will verify: (a) Normal operation ofthe steering mechanism and (b) Operabilityof all passenger doors, passenger escapemechanisms, windows, and service doors. Inaddition, a water leak test will be conducted.

(3) Using a load-equalizing towing sling, astatic tension load equal to 1.2 times the buscurb weight will be applied to the bus towingfixtures (front and rear). The load will be re-moved and the two eyes and adjoining struc-ture will be inspected for damages or perma-nent deformations.

(4) The bus at curb weight will be towedwith a heavy wrecker truck for several milesafter which it will be inspected for structuraldamage or permanent deformation.

(5) With the bus at curb weight probabledamages due to tire deflating and jackingwill be tested.

(6) With the bus at curb weight possibledamages or deformation associated with lift-ing the bus on a two post hoist system orsupporting it on jack stands will be assessed.

b. Structural Durability

The structural durability test also will bedifferent for each type of bus, but all testswill be performed on the durability course atthe proving ground, simulating up to twen-ty-five percent of the vehicle’s normal serv-ice life. During the test there will be inspec-tions of the bus structure and the mileageand identification of possible structuralanomalies.

6. Fuel Economy

This test will be run to determine the fueleconomy in miles per gallon or equivalent ofthe new bus models. The test will be run atseated load weight on a duty cycle that sim-ulates transit service for the type of vehiclebeing tested. The fuel measurement devicesunder consideration include volumetric,gravimetric, flow and pressure.

This fuel economy test bears no relation tothe calculations done by the EnvironmentalProtection Agency (EPA) to determine fueleconomy levels for the Corporate AverageFuel Economy Program. However, the testwill provide data which can be used by re-cipients in their purchase decisions.

7. Noise

There will be two noise tests: a. Interiornoise and vibration; and b. Exterior noise. Itis recognized that different levels of noiseare expected and acceptable with differenttypes of vehicles and different test proce-dures might be required.
