[Federal Register Volume 71, Number 59 (Tuesday, March 28, 2006)]
[Notices]
[Pages 15513-15516]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-4441]
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DEPARTMENT OF TRANSPORTATION
Federal Transit Administration
[Docket No. FTA-2006-23511]
Supplemental Request for Comments on Issues Relating to ``Joint
Development'' of Intercity Bus and Intercity Rail Stations and
Terminals and Extension of Comment Period
AGENCY: Federal Transit Administration (FTA), DOT.
ACTION: Solicitation of comment; Extension of comment period.
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SUMMARY: The Safe, Accountable, Flexible, Efficient Transportation
Equity Act of 2005: A Legacy for Users (SAFETEA-LU) enacted certain
amendments to the definition of the term ``capital project'' as used in
49 U.S.C. 5301 et seq. (Federal Transit Law) relating to ``joint
development'' activities by recipients of Federal funds under Federal
Transit Law. In order to assist the Federal Transit Administration
(FTA) in developing a proposed guidance document concerning the
implementation of such amendments, FTA published a proposed guidance
document on January 31, 2006 (71 FR 5107). Since publication of that
document, FTA identified several other issues on which we would like to
receive public input, and, thus, we are extending the comment period
for an additional thirty days. Also, please be advised that the
previously published guidance on joint development will not operate as
interim or final guidance for FTA unless and until otherwise stated by
FTA, in writing.
DATES: Comments should be received on or before April 27, 2006. Late
filed comments will be considered to the extent practicable.
ADDRESSES: You may submit comments [identified by DOT DMS Docket Number
FTA-2006-23511] by any of the following methods:
Web Site: http://dms.dot.gov. Follow the instructions for
submitting comments on the DOT electronic docket site.
Fax: 202-493-2251.
Mail: Docket Management Facility; U.S. Department of
Transportation, 400 Seventh Street, SW., Nassif Building, PL-401,
Washington, DC 20590-0001.
Hand Delivery: Room PL-401 on the plaza level of the Nassif
Building, 400 Seventh Street, SW., Washington, D.C., between 9 a.m. and
5 p.m., Monday through Friday, except Federal holidays.
Instructions: You must include the agency name (Federal Transit
Administration) and the docket number (FTA-2006-23511). You should
submit two copies of your comments if you submit them by mail. If you
wish to receive confirmation that FTA received your comments, you must
include a self-addressed stamped postcard. Note that all comments
received will be posted without change to the Department's Docket
Management System (DMS) Web site located at http://dms.dot.gov. This
means that if your comment includes any personal identifying
information, such information will be made available to users of DMS.
FOR FURTHER INFORMATION CONTACT: For program questions, please contact
Robert Tuccillo at (202) 366-4050. For legal questions, please contact
Jayme Blakesley at (202) 366-0304. The principal office of FTA is
located at 400 Seventh Street, SW., Washington, DC 20590-0001. Office
hours are from 8:30 a.m. to 5 p.m., Monday through Friday, except
Federal holidays.
SUPPLEMENTARY INFORMATION:
[[Page 15514]]
Background
Federal Transit Law has included joint development authority since
the Federal Public Transportation Act of 1978. In the Transportation
Equity Act for the 21st Century, the joint development authority was
incorporated into the definition of a public transportation ``capital
project'' at 49 U.S.C. 5302(a)(1)(G). This made joint development
activities eligible for reimbursement under formula and discretionary
public transportation grant programs.
New Authority
SAFETEA-LU adds intercity bus and rail stations and terminals to
the joint development authority and exempts such facilities from the
prohibition on funding the construction of commercial, revenue-
producing facilities.
As amended by SAFETEA-LU, the definition of ``capital project''
provides, in pertinent part, as follows:
(1) Capital project.--The term ``capital project'' means a
project for--
(G) a public transportation improvement that enhances economic
development or incorporates private investment, including commercial
and residential development, pedestrian and bicycle access to a
public transportation facility, construction, renovation, and
improvement of intercity bus and intercity rail stations and
terminals and the renovation and improvement of historic
transportation facilities, because the improvement enhances the
effectiveness of a public transportation project and is related
physically or functionally to that public transportation project, or
establishes new or enhanced coordination between public
transportation and other transportation, and provides a fair share
of revenue for public transportation that will be used for public
transportation--
(i) including property acquisition, demolition of existing
structures, site preparation, utilities, building foundations,
walkways, open space, safety and security equipment and facilities
(including lighting, surveillance and related intelligent
transportation system applications), facilities that incorporate
community services such as daycare or health care, and a capital
project for, and improving, equipment or a facility for an
intermodal transfer facility or transportation mall, except that a
person making an agreement to occupy space in a facility under this
subparagraph shall pay a reasonable share of the costs of the
facility through rental payments and other means; and
(ii) excluding construction of a commercial revenue-producing
facility (other than an intercity bus station or terminal) or a part
of a public facility not related to public transportation . * * *
[emphasis added]
FTA proposes to implement the joint development authority by
providing guidance in Appendix A to Circular 9300.1A (Capital Program:
Grant Application Instructions) and in Appendix B to Circulars 5010.1C
and 9030.1C (Grants Management Guidelines and Urbanized Area Formula
Program: Grant Application Instructions). In addition to the proposed
guidance document published on January 31, 2005, and before issuing the
appendices for public comment in accordance with 49 U.S.C. 5334(l), FTA
is soliciting additional comment on the issues identified below and we
invite those reviewing this document to bring to our attention issues
we might not have identified, due to state law or local share issues
that may affect how this new authority can be implemented.
1. Interpretation of ``Capital Project''
FTA proposes to interpret the definition and operation of the term
``capital project'' set forth at 49 U.S.C. 5302(a)(1)(G) with respect
to ``construction, renovation and improvement of intercity bus and
intercity rail stations and terminals'' as follows: To be eligible for
funding pursuant to a program established by Federal Transit Law, the
``construction, renovation and improvement of intercity bus and
intercity rail stations and terminals'' must be ``a public
transportation improvement'' that (A) ``enhances economic development
or incorporates private investment'' and (B) that either (i) ``enhances
the effectiveness of a public transportation project and relates
physically or functionally to that public transportation project'' or
(ii) ``establishes new or enhanced coordination between public
transportation and other transportation.'' FTA requests comment on the
above interpretation of 49 U.S.C. 5302(a)(1)(G).
2. ``Enhances Economic Development or Incorporates Private
Development''
As noted above, it is a threshold requirement for Federal funding
of ``construction, renovation and improvement of intercity bus and
intercity rail stations and terminals'' that such construction,
renovation and improvement enhance economic development or incorporate
private investment. FTA invites recommendations of criteria by which
FTA may determine whether the construction, renovation and improvement
of an intercity bus or intercity rail station or terminal enhance
economic development or incorporate private investment.
3. ``Enhances the Effectiveness of Public Transportation Project''
The construction, renovation and improvement of intercity bus and
intercity rail stations and terminals may receive Federal funding if,
among other things, such construction, renovation and improvement
``enhances the effectiveness of a public transportation project.'' FTA
invites recommendations of criteria by which FTA may determine whether
the construction, renovation and improvement of an intercity bus or
intercity rail station or terminal ``enhances the effectiveness of a
public transportation project.''
4. The Meaning of ``Related Physically or Functionally''
The construction, renovation and improvement of intercity bus and
intercity rail stations and terminals may receive Federal funding if,
among other things, such construction, renovation and improvement are
``related physically or functionally'' to a public transportation
project. Based on the implementation of this authority over the last
twenty years, FTA has construed ``related physically or functionally''
to require, as a threshold matter, that such construction, renovation
and improvement be located on land used for a transit purpose. Within
this framework, FTA has previously preferred projects where the joint
development was fully integrated into the overall structural envelope
of the public transportation project, thus ensuring a physical
relationship.
However, the addition of intercity bus and train stations to the
definition of a public transportation capital project raises some
questions regarding functional relationship. The disjunctive
requirement of physical ``or'' functional relation suggests that such a
facility could be built separately from--but in functional relation
to--a public transportation facility and located on land not used for a
transit purpose, so long as such facility bore a functional relation to
public transportation. FTA invites recommendations of criteria by which
FTA may determine whether the construction, renovation and improvement
of an intercity bus and intercity rail station or terminal relate
``functionally'' to a public transportation project. In particular, FTA
solicits examples of joint development projects that are functionally
related to a public transportation facility without being physically
related (that is, without being contiguous or structurally integrated).
In addition, FTA invites responses to the following related questions:
[[Page 15515]]
Should FTA consider any other indicators of functional
relationship, such as facility design, presence or function of
pedestrian improvements?
May the functional relationship extend across an
intervening street, major thoroughfare or unrelated property? For
example, is a public transportation facility on one side of the street
still functionally related to an intercity bus station on the opposite
side of the street?
What is sufficient to establish a functional relationship
that does not involve physical proximity to and/or physical connection
to a public transportation facility? Please provide examples that
illustrate such a relationship.
If FTA determines that a free-standing facility is
functionally related to a public transportation facility or system, how
should it determine the amount of parking that is an eligible cost?
5. Meaning of ``New or Enhanced Coordination between Public
Transportation and Other Transportation''
A joint development project may be eligible for Federal funding if,
among other things, it establishes ``new or enhanced coordination
between public transportation and other transportation.'' FTA invites
recommendations of criteria by which FTA may determine whether the
construction, renovation and improvement of an intercity bus or
intercity rail station or terminal establishes ``new or enhanced
coordination between public transportation and other transportation.''
In addition, FTA invites responses to the following related questions:
Is there a minimum or basic standard to estimate ``new or
enhanced coordination''? That is, by what metric should the new or
enhanced coordination be assessed--increased trips, increases in
certain kinds of trips, revenue generated or revenue shared?
What level of public transportation service should there
be with which the joint development project might establish ``new or
enhanced coordination''? Is an hourly scheduled service bus stop
sufficient, or does it require at least a main line route or terminal?
FTA seeks practical, recent examples of new or enhanced
coordination between public transportation and other transportation,
particularly where multiple modes are involved, such as public
transportation with intercity rail and/or bus, or airports, or taxi.
6. Requirements Regarding ``Satisfactory Continuing Control''
The law provides significant flexibility to public transportation
grantees to encumber their federally supported assets for public
transportation purposes, with prior FTA approval. Sections
5307(d)(1)(B) and 5309(c)(1)(B) of Title 49 require that the grantee
has or will have (or certify that it has or will have) ``satisfactory
continuing control over the use of the equipment [and/or] facilities. *
* *'' FTA has allowed public transportation grantees to transfer the
title to their federally-funded rolling stock to facilitate lease
financing or to transfer real property to a third party to facilitate a
joint development, again, with prior FTA approval. In addition, FTA
invites responses to the following related questions:
In the case of an intercity bus or rail terminal, how
should the grantee demonstrate satisfactory continuing control?
If FTA allows a free-standing intercity bus terminal to be
built with FTA funds, should FTA record its interest in the real estate
as allowed for in the Master Agreement? Should the grantee? If no
interest is recorded, how and who will be responsible for monitoring
future encumbrances of the asset as required by the common grant rule?
Once an intercity bus or rail terminal is constructed with
FTA funds, should the grantee or the intercity bus or rail operator
control the quality of maintenance, the hours of facility operations,
or the manner of functional relationship to public transportation?
7. Requirements Regarding Maintenance
Section 5309(c)(1) of Title 49 provides that ``[t]he Secretary may
not approve a grant for a project under [49 U.S.C. 5309] unless the
Secretary determines that * * * the applicant has, or will have the
capability and willingness to maintain the equipment or facilities.''
Similarly, 49 U.S.C. 5307(d) provides that ``[a] recipient may receive
a grant in a fiscal year only if * * * the recipient, within the time
the Secretary prescribes, submits a final program of projects prepared
under subsection (c) of [49 U.S.C. 5307] and a certification for that
fiscal year that the recipient * * * will maintain equipment and
facilities. * * *'' FTA invites recommendations of criteria by which
FTA may determine whether a recipient has the capability and
willingness to maintain (or that the recipient will maintain) the
construction, renovation and improvement of an intercity bus and
intercity rail stations and terminals funded pursuant to 49 U.S.C.
5309(c)(1) or 49 U.S.C. 5307(d). FTA also invites comment on to what
degree, if any, FTA should investigate the quality of certification by
a recipient that it ``will maintain equipment and facilities'' pursuant
to 49 U.S.C. 5307(d)(1)(C), given that in most cases the recipient will
be a public body such as a transit authority. In addition, FTA invites
responses to the following related questions:
Once an intercity bus or rail terminal or station is
constructed with FTA funds, what should be the permissible use of
program income generated by the intercity bus or rail terminal or
station? Should FTA allow program income to be used for debt service,
return on investment of any private person financing the facility, or
operation and maintenance costs, with excess revenues used for purposes
allowable under Federal Transit Law?
Should FTA ensure that there is an enforceable maintenance
agreement between the transit authority and private company as a pre-
requisite to grant approval?
Do transit authorities have funding and legal authority to
assume the maintenance responsibility for private facilities?
8. Rules Concerning Cessation of Use of a Federally-Funded Intercity
Bus or Rail Terminal or Station for Purposes Allowable Under Federal
Transit Law
The construction of an intercity bus or rail terminal with Federal
grant funds establishes a ``Federal Interest'' in the resulting
project, such that the project is governed by the real estate
disposition requirements of the common grant rule at 49 CFR 18.31 and
Circular 5010.1C, as well as by disposition rules at 49 U.S.C. 5334(h)
and the common grant rule set forth at 49 CFR 18.32. (See also Section
19 of the Master Agreement.) If the property ceases to be used for a
public transportation purpose, including an intercity bus or rail
purpose, then the property may be disposed of as ``excess property.''
In such instance, the grantee or sub-grantee must request disposition
instructions from the granting agency. These instructions may include
requiring a pro-rata return of disposition proceeds to the U.S.
Treasury, or the grantee may be allowed to apply the proceeds to reduce
the net capital cost of a future public transportation project. The
property may also be transferred to another public use with prior FTA
approval, without having to return the
[[Page 15516]]
Federal investment. In addition, FTA invites responses to the following
related questions:
How should this provision be implemented for intercity bus
or rail terminal projects undertaken on land not owned by the public
transportation agency?
On what basis might non-transportation joint development
activities be considered in this context, particularly with regard to
the generation of program income and joint development transfer of real
property? FTA seeks practical examples of intercity bus or rail
terminal reuse, after cessation of intercity service.
9. Eligibility of Furniture, Fixtures and Equipment as a ``Capital
Project''
Generally, FTA has funded transportation-related furniture,
fixture, and equipment (FFE) as eligible costs for public
transportation projects. FFE related to community services and private,
profit-making activities has never been considered eligible, even in
the context of joint development. For example, when FTA provided
funding for the Linden Center day care in central Ohio, this did not
extend to lighting fixtures, tables, chairs, blackboards, or other
items required for the day care, even though many of these items were
permanently affixed or built into the facility. These items were paid
for by the tenant. FTA is considering applying this same standard to
intercity bus and rail terminals that are qualified as public
transportation capital projects. Because, to date, these items are not
considered eligible for Federal funding, they have also not been
previously allowed as local match for Federal grant dollars. In
addition, FTA invites responses to the following related question:
How should FTA treat FFE related to lunch counters,
vending kiosks, and miscellaneous retail activities, such as those
found in many intercity bus and rail terminals?
Issued on the 22nd day of March, 2006.
Sandra K. Bushue,
Deputy Administrator.
[FR Doc. E6-4441 Filed 3-27-06; 8:45 am]
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