[Federal Register: September 30, 2008 (Volume 73, Number 190)]
[Notices]
[Page 56888-56892]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30se08-113]
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DEPARTMENT OF TRANSPORTATION
Federal Transit Administration
[Docket No. FTA-2007-29123]
Capital Investment Program: Availability of Final Circular
AGENCY: Federal Transit Administration (FTA), DOT.
ACTION: Notice of Availability of Final Circular.
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SUMMARY: The Federal Transit Administration (FTA) has placed in the
docket and on its Web site, guidance in the form of a circular to
assist grantees in implementing the Capital Investment Program.
Principally, the Capital Investment Program provides Federal funding
for buses and bus facilities, new fixed guideway systems, and fixed
guideway modernization, as authorized by statute.
DATES: The effective date of the circular is November 1, 2008.
FOR FURTHER INFORMATION CONTACT: Kimberly Sledge, Office of Program
Management, Federal Transit Administration, 1200 New Jersey Ave., SE.,
East Building, Washington, DC 20590, phone: (202) 366-2053, fax: (202)
366-7951, or e-mail, Kimberly.Sledge@dot.gov; or Bonnie Graves, Office
of Chief Counsel, same address, phone: (202) 366-0944, fax: (202) 366-
3809, or e-mail, Bonnie.Graves@dot.gov.
SUPPLEMENTARY INFORMATION:
Availability of Final Circular
The final circular is not included with this document. You may
download an electronic copy of the circular from FTA's Web site, at
http://www.fta.dot.gov. From the home page, click on ``Legislation,
Regulations and Guidance'' and on that page click on ``Circulars.''
Circulars are listed in numerical order; the Capital Investment
Circular is number 9300.1. Paper copies of the circular may be obtained
by calling FTA's Administrative Services Help Desk, at 202-366-4865.
You may retrieve the circular and comments online through the
Federal Document Management System (FDMS) at: http://
www.regulations.gov. Enter docket number FTA-2007-29123 in the
[[Page 56889]]
search field. The FDMS is available 24 hours each day, 365 days each
year. Electronic submission and retrieval help and guidelines are
available under the help section of the Web site.
Table of Contents I. Overview
II. Chapter-by-Chapter Analysis
A. Chapter I--Introduction and Background
B. Chapter II--Program Overview
C. Chapter III--Buses and Bus Facilities
D. Chapter IV--Fixed Guideway Modernization
E. Chapter V--New Starts/Small Starts Program
F. Chapter VI--Other Provisions
G. Appendices
I. Overview
This notice provides a summary of changes to FTA Circular 9300.1A,
Capital Program: Grant Application Instructions, and addresses comments
received in response to the September 28, 2007, Federal Register notice
(72 FR 55624). Originally, the comment period was scheduled to close on
November 27, 2007; however, in response to comments to the docket, the
comment period was subsequently extended until January 25, 2008. FTA
received comments from twelve parties, including industry associations,
transit agencies, metropolitan planning organizations, and one private
transportation provider.
This final Circular 9300.1B supersedes the Circular 9300.1A, issued
in 1998.
FTA has adopted all of the proposed formatting changes published in
the proposed circular. For example, we have changed the name of the
circular to ``Capital Investment Program'' to reflect a focus on the
capital investment nature of eligible activities in 49 U.S.C. 5309
(``Section 5309''), as amended by the Safe, Accountable, Flexible,
Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU).
In addition, we changed the format to make this circular consistent
with the style of other circulars FTA is updating. At the same time, we
have tried to maintain some consistency with the previous document; for
example, information about the Bus program is still in Chapter III,
Fixed Guideway Modernization continues to be in Chapter IV, with New
Starts/Small Starts information in Chapter V. Substantive changes in
content, as well as comments to the proposed circular, are discussed in
the chapter-by-chapter analysis.
II. Chapter-by-Chapter Analysis
As a preliminary matter, some commenters had non-substantive
comments, such as formatting suggestions, a suggestion to remove
references to old Federal Register notices, to include specific terms
in the index, and to do a thorough review of the draft for typos,
cross-referencing errors, and the like. We have removed the old Federal
Register references, made some, but not all, of the suggested
formatting changes, added terms to the index, and we have thoroughly
reviewed the document in an effort to remove the errors noted by
commenters. Further, we have re-ordered the sections of some of the
chapters to present the material in a more organized fashion. Some
comments were outside the scope of the proposed circular, and we have
not addressed those comments in either the circular or this Federal
Register notice.
One commenter thought the title ``Capital Investment Program'' was
misleading since we have included a brief description of the Clean
Fuels program (49 U.S.C. 5308) in the Bus chapter. We included
information about the Clean Fuels program because buses purchased under
Section 5309 may be Clean Fuels buses, and some recipients under
Section 5309 may also seek funding under the Clean Fuels program for
additional buses. It is therefore appropriate to include information
about this related program in the Bus chapter. One commenter suggested
that if FTA amends or updates the circular due to changes in other
circulars or regulations that undergo notice and comment, that there be
further public notice and comment. FTA disagrees. When the revision of
a circular or regulation requires an opportunity for notice and
comment, there is no need to satisfy that requirement again just to
update a reference to that revised document in this circular. We have
clarified this language in the circular.
A. Chapter I--Introduction and Background
Chapter I of the proposed circular is an introductory chapter and
covers general information about FTA and how to contact us, briefly
reviews the authorizing legislation for the Capital Investment program
(``Section 5309 program''), provides information about Grants.gov,
includes definitions applicable to the program, and provides a brief
program history. The definitions section is new to this circular and
includes definitions related to the Section 5309 program, as well as
the Section 5308, Clean Fuels grant program. Where applicable, we have
used the same definitions found in statutes, rulemakings or other
circulars and guidance documents to ensure consistency.
One commenter suggested that the definition of ``Alternatives
Analysis'' should not require alternatives analysis studies to include
sufficient information to provide a rating for project justification
and local financial commitment. FTA refers the commenter and others to
49 U.S.C. 5309(a)(1)(B), which requires that alternatives analysis
studies include this information. Since this information is in the
statute, we did not change the definition in the circular.
Two commenters had questions about the definitions of ``Eligible
Applicant'' and ``Designated Recipient'' as used in this circular. The
term ``Eligible Applicant,'' as used in this circular, applies only to
the Capital Investment program, and not to the Clean Fuels bus program;
similarly, the definition of ``Designated Recipient,'' as used in this
circular, applies only to the Clean Fuels program, as it specifically
addresses the nonattainment and maintenance area requirements of the
Clean Air Act. We have used the term ``Recipient'' when referring to a
designated recipient or an eligible applicant, but when those specific
terms are used in this circular, they apply to either the Clean Fuels
or the Capital Investment program, as defined. One commenter suggested
that FTA change the Clean Fuels definition to state, ``* * * the
Administrator of EPA has certified sufficiently or significantly
reduces harmful emissions.'' Since the statute at 49 U.S.C.
5308(a)(1)(B) uses the term ``sufficiently,'' FTA will use the same
terminology.
One commenter suggested we add the word ``streetcar'' to the
definition of fixed guideway and we made that change. One commenter
suggested we add a definition of ``Urbanized Area,'' and we have done
so. One commenter suggested that we change the acronym for urbanized
area from ``UZA'' to ``UA,'' which is the Census Bureau's acronym. We
decline to make that change. The acronym UZA is familiar to the transit
industry, is used in virtually every FTA document, and has become a
term of art. At the request of a commenter, we have added a definition
of ``Intelligent Transportation Systems,'' but decline to add a
definition of ``Eligible Projects,'' as eligible projects are included
in Chapters II through V. One commenter objected to the inclusion of a
definition of ``Very Small Starts;'' we will address that objection and
other comments received regarding Very Small Starts in the analysis of
Chapter V.
In addition to the changes described above, FTA has added several
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definitions to this chapter, including ``Capital Asset,'' ``Capital
Lease,'' ``Discretionary Funding,'' ``Facilities,'' ``Grant,''
``Intelligent Transportation Systems,'' ``Preventive Maintenance,''
``Public Transportation,'' and ``Useful Life.''
B. Chapter II--Program Overview
Chapter II provides more detail about the Capital Investment
program. The first few sections of the chapter were re-ordered for
readability and consistency. This chapter starts with the statutory
authority for the Capital Investment program, followed by
apportionments, funds availability, the goals of the program and a list
of eligible projects. Also included in Chapter II is information on
Federal/local matching requirements, relationship to other FTA
programs, and the requirements to ensure a recipient has the legal,
financial and technical capacity to carry out a Capital Investment
project.
There were some changes to eligible projects under 49 U.S.C. 5309
with the enactment of SAFETEA-LU. Under the previous authorization
statute (The Transportation Equity Act for the 21st Century (TEA-21)),
there were eight categories of eligible projects in 49 U.S.C. 5309.
These included bus and bus facilities, new fixed guideways, fixed
guideway modernization, development of corridors to support fixed
guideway systems, projects designed to meet the needs of elderly and
disabled passengers, projects to introduce new technology, the capital
costs of coordinating public transportation with other transportation,
and capital projects needed for an efficient and coordinated public
transportation system. Under SAFETEA-LU, there are only four categories
of eligible projects in 49 U.S.C. 5309: bus and bus facilities, new
fixed guideways, fixed guideway modernization, and corridor
improvements. Therefore, the list of eligible projects in the circular
changed, as well. We defined the four categories of eligible projects
as ``capital investment projects'' and listed them in this chapter as
``assets for which FTA provides assistance.'' In addition to these
``capital investment projects,'' however, we have included a list of
projects that, ``when integral to a capital investment project,'' are
eligible for Section 5309 funding. One commenter asked us to clarify
whether Intelligent Transportation Systems (ITS) is eligible as a
stand-alone project. Since the statute permits the purchase of ``buses
and related equipment'' and ITS projects are directly related to buses
and bus facilities, ITS is eligible as a stand-alone project. In
addition, bus purchases to meet the needs of elderly persons and
persons with disabilities continue to be eligible, since bus purchases
generally are eligible. We note that the purchase of buses to meet the
special transportation needs of these populations is the purpose of the
Section 5310 program, and funding is available from that program to
private non-profit organizations where public transportation is
unavailable, insufficient or inappropriate.
We proposed removing two previously eligible projects from the
circular: the capital cost of contracting and preventive maintenance
for the bus program. We noted that both of these capital expenditures
are eligible for funding under other FTA programs, including the
Urbanized Area Formula program (49 U.S.C. 5307) and the Nonurbanized
Area Formula program (49 U.S.C. 5311). Three commenters expressed
concern about removing the capital cost of contracting from the list of
eligible expenses, and three commenters expressed concern about
removing preventive maintenance as an eligible expense. After careful
consideration of the comments, we have returned both the capital cost
of contracting and preventive maintenance to the list of eligible
activities.
Two commenters suggested that FTA include ``intercity bus and
intercity rail stations and terminals'' as eligible projects. We have
added this language where appropriate. One commenter requested that we
add a paragraph on Joint Development under the ``Relationship to Other
Programs'' section of this chapter. We decline to add an additional
paragraph, as there is an extensive discussion in Chapter III, at
section 8, ``Requirements Related to Facilities,'' including a
reference to FTA's policy on joint development, published in the
Federal Register on February 7, 2007 (72 FR 5788).
C. Chapter III--Buses and Bus Facilities
Chapter III addresses buses and related equipment, commonly known
as ``the bus program.'' This chapter contains information on how funds
are allocated, a new section describing eligible recipients, examples
of eligible bus projects, environmental considerations, requirements
related to vehicles, equipment, and facilities, and information about a
complementary program, the Clean Fuels grant program.
Two commenters suggested including intercity bus and rail terminals
and stations as eligible projects. We have added this language where
appropriate, and specified that funding of intercity bus stations and
terminals are eligible when part of a joint development project, in
accordance with FTA's guidance on joint development (72 FR 5788, Feb.
7, 2007).
One commenter recommended that FTA include a reference to the
Federal Highway Administration's (FHWA) guidance on the Congestion
Mitigation and Air Quality (CMAQ) Improvement program in the paragraph,
``Clean Air Act.'' We have added the hyperlink to FHWA's guidance on
this program. One commenter suggested that FTA require recipients to
include the planning justification in FTA's Transportation Electronic
Award and Management (TEAM) system grant application. We have modified
the circular to reflect this suggestion. We have also updated the
Charter Bus information, since the final rule became effective on April
30, 2008.
Four commenters raised concerns about the paragraph describing
``Mixed-Use Projects'' in the section, ``Requirements Related to
Facilities.'' Commenters were concerned about FTA's characterization of
when a project would qualify as a joint development project, and were
concerned that FTA had an overbroad interpretation of ``program
income.'' In addition, one commenter requested that FTA include
language on intercity bus terminals in this section. We have revised
this section to address the commenter's concerns by more clearly
describing joint development projects and clarifying when revenue is
``program income.'' Further, we added language about intercity bus
terminals.
Two commenters suggested that FTA edit the section, ``Environmental
Considerations,'' which describes the requirements under the National
Environmental Policy Act (NEPA). In the proposed circular, we included
examples of projects that are considered ``categorical exclusions'';
however, FHWA and FTA jointly published a notice of proposed rulemaking
in the Federal Register (72 FR 44038, Aug. 7, 2007), and therefore,
that list may change. In order to keep the circular current even after
the rule has been finalized, we have removed the list of items that are
considered categorical exclusions and addressed NEPA requirements in
general terms.
Two commenters suggested that FTA revise its like-kind exchange
policy. One commenter suggested that proceeds from vehicles disposed of
prior to the end of their useful lives should be able to be used for
any federally funded activity. FTA's long-standing like-kind exchange
policy requires assets disposed of prior to their useful lives to be
replaced in kind, or the proceeds of such disposition returned to FTA.
We
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believe this policy protects the Federal interest and should not be
changed. Another commenter suggested that FTA's ability to direct the
proceeds of any sale should be limited to its remaining interest, and
the use of proceeds in excess of the Federal interest should be up to
the recipient. FTA declines to make this change because 49 U.S.C.
5334(h)(4)(B) requires that ``the net income from asset sales, uses, or
leases (including lease renewals) * * * shall be used by the recipient
to reduce the gross project cost of other capital projects carried out
under this chapter.'' One commenter suggested that FTA develop useful
life standards for sedans and pick-up trucks which are commonly
purchased by transit agencies. FTA has added sedans used in revenue
service to the list that includes small buses and vans, and we have
added useful life standards for trolleys and ferryboats. Vehicles used
in non-revenue service are considered ``equipment'' and the reader is
directed to FTA circular 5010, Grants Management Requirements, for
useful life requirements for equipment.
Two commenters made suggestions about the language in the section
on Buy America; we have streamlined this paragraph in Chapter III as
well as in other chapters that contain information on Buy America. One
commenter requested that FTA permit a ``phase-in'' period for the
requirements of the Presidential Coin Act. FTA does not have a role in
the implementation of this statute. We provide the information in the
circular simply to make recipients aware of their responsibilities. FTA
has moved the section discussing the Presidential Coin Act to Chapter
VI, Other Provisions, since it applies to all Section 5309 projects.
D. Chapter IV--Fixed Guideway Modernization
Chapter IV addresses fixed guideway modernization, and the chapter
has been re-ordered for readability and consistency. One commenter
disagreed with the statement in the section, ``Relationship to
Urbanized Area Formula Funding,'' that for projects using both Section
5307 and Section 5309 funding, ``it may be efficient to submit the
grant applications at the same time.'' We decline to remove this
sentence. It is not a requirement that these applications be submitted
at the same time, but in many cases, it may in fact be more efficient
to do so. As we state in the circular, the grant applicant should
discuss the best approach with the appropriate FTA regional office.
Similar to Chapter III's section on ``Environmental
Considerations,'' we have edited the section, ``Requirements of Fixed
Guideway Modernization Projects'' to remove the list of categorically
excluded projects. This section now includes general information about
NEPA requirements as they relate to fixed guideway modernization.
One commenter noted that FTA has adopted a general policy that rail
vehicles have a minimum useful life of 25 years, but a recipient may
measure lifespan by hours of operation or another measure, and
requested that these alternative methodologies be referenced in
subsequent paragraphs. We decline to make that change primarily because
we note in the circular that ``A recipient * * * may develop an
appropriate methodology for converting its system to years of
service.'' Once converted, it is appropriate to discuss useful life in
terms of years rather than in hours of service or other measure of
useful life.
One commenter suggested that FTA clarify, in the subsection,
``Major Capital Projects,'' whether a project management plan must be
approved by FTA as a prerequisite to having the grant approved, and set
a time period for FTA review of any submissions. We have made this
change.
E. Chapter V--New Starts/Small Starts Program
Chapter V addresses the New Starts/Small Starts program, and we
have added a section, ``Allocation of Funds and Period of
Availability.'' In addition to the information found in Chapter V of
the circular, FTA maintains a New Starts Web page, at http://
www.fta.dot.gov/planning/planning_environment_5221.html, which
contains the most up-to-date guidance for this program.
In this circular, FTA draws a distinction between a ``New Start''--
a project that has a total cost of $250 million or more, or for which
the project sponsor is requesting more than $75 million in Federal
funds; and a ``Small Start''--a project that has a total cost of less
than $250 million that requests less than $75 million in Federal funds.
The various requirements for these two different types of projects are
described throughout the chapter.
Two commenters requested that FTA include the statutory list of
characteristics that make a corridor-based bus capital project a
``fixed guideway capital project.'' The list of characteristics found
in 49 U.S.C. 5309(e)(10)(B) is neither prescriptive nor exhaustive. The
statute uses the words ``such as'' when listing those features that
represent a ``substantial investment in a defined corridor.'' The
discussion of Small Starts set forth in the circular reflects the
proposed and final policy guidance on New Starts and Small Starts
developed through public notice and comment. See, 73 FR 21170, Apr. 18,
2008 and 73 FR 46352, Aug. 8, 2008.
Two commenters questioned FTA's authority to establish requirements
for ``Very Small Starts'' that differ from those for Small Starts since
``Very Small Starts'' are not defined or established by statute or
regulation. FTA interprets 49 U.S.C. 5309(c)(3) to provide the Federal
Transit Administrator with broad discretion to award grants for
disparate types of New Start and Small Start projects on such ``terms,
conditions, requirements, and provisions'' as the Administrator
determines ``necessary or appropriate'' to carry out the New Starts and
Small Starts programs authorized by 49 U.S.C. 5309(d) and (e). The
discussion of Very Small Starts set forth in the circular reflects the
proposed and final policy guidance on New Starts and Small Starts
developed through public notice and comment. See, e.g., 71 FR 45100,
Aug. 8, 2006; 72 FR 6663, Feb. 12, 2007; 72 FR 30912, June 4, 2007; and
the Updated Interim Guidance on Small Starts issued in July 2007.
Although FTA has not yet promulgated a final regulation for New Starts
and Small Starts, the Administrator continues, in his discretion, to
award discretionary grants under both programs, and this circular
reflects the basis on which the Administrator will award grants for
Very Small Starts.
Two commenters indicated that FTA should revise its definition of
``financially constrained,'' found in the section, ``Planning and
Project Development Process.'' We have revised this definition so that
it is identical to the definition found in the FHWA/FTA planning
regulation at 23 CFR 450.104. Two commenters suggested that in the
section, ``Environmental Protection,'' the circular should not state
that environmental regulations ``prohibit FTA from taking a final
action * * *.'' We have revised the section to include language from
the joint FHWA/FTA environmental regulations. One commenter indicated
that we only addressed New Starts in this section; we have added the
terms Small Starts and Very Small Starts, as the environmental
protection requirements are likely to apply to those projects, as well.
F. Chapter VI--Other Provisions
This chapter is similar to the ``Other Provisions'' chapters in
other FTA circulars, and summarizes a number of FTA-specific and other
Federal
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requirements that FTA grantees are held to in addition to the program-
specific requirements and guidance provided in the circular. We revised
this chapter to alphabetize the provisions, and we moved the
Presidential Coin Act to this chapter.
Two commenters asked FTA to clarify whether the public hearing
requirements described in the section, ``Public Hearing Requirements''
apply to projects that are categorical exclusions under NEPA. The
circular states that NEPA public hearing requirements are sufficient to
meet the requirements of 49 U.S.C. 5323(b), which requires public
involvement for any capital project that will ``substantially affect a
community or the public transportation services of a community.''
Therefore, whether or not NEPA public hearing requirements apply, the
provisions of 49 U.S.C. 5323(b) require public involvement for most
capital projects. In response to comments, we have edited this section
to clarify the requirements.
We have revised the section, ``Environmental Reviews,'' since each
chapter contains specific information about environmental requirements
that apply to specific types of projects, and an extensive discussion
in this chapter is repetitive and unnecessary. One commenter suggested
that in the section, ``Clean Air Act,'' we include as an appendix the
list of exempt transit projects in the EPA regulation that do not
require any analysis. We decline to include this list, but we have
included the direct regulatory citation for this information.
We have updated the section, ``Charter Bus Services'' to reflect
the new regulation on charter service. (73 FR 2326, Jan. 14, 2008).
G. Appendices
The appendices are intended as tools for developing a grant
application. Appendix A specifically addresses steps and instructions
for preparing a grant application, including pre-application and
application stages. Appendix A also includes an application checklist
and information for registering with the Electronic Clearing House
Operation's (ECHO's) electronic payment system. One commenter suggested
we include information as to where one can find the TEAM User Guide; we
have included the hyperlink to the Web site for this information. One
commenter suggested that FTA request planning justification information
in the ``project description'' section of TEAM. While this information
is not required in the project description, we note that recipients
must include the date and page number of the most recently approved
Statewide Transportation Improvement Plan (STIP) for the projects
listed in the application.
Appendix B provides budget information, including several sample
budgets. Appendix C contains samples of an Authorizing Resolution, a
Fleet Status Report, Like-Kind Transaction for Mid-life Sale of a
Transit Bus, an Opinion of Counsel, a Project Milestone Schedule, and
Proceeds from the Sale of Assets. Appendix D contains contact
information for all of FTA's regional and metropolitan offices, and a
new Appendix E contains a listing of all legal citations found in the
circular.
With the substantive exceptions noted in the chapter-by-chapter
analysis above, as well as non-substantive and clarifying edits, FTA
adopts the final circular as proposed.
Issued in Washington, DC, this 22nd day of September, 2008.
James S. Simpson,
Administrator.
[FR Doc. E8-22840 Filed 9-29-08; 8:45 am]
BILLING CODE 4910-57-P