Notice of Availability of Proposed Interim Guidance and Instructions for Small Starts and Request for Comments

AGENCY:

Federal Transit Administration (FTA), DOT.

ACTION:

Notice of availability; Request for comments.

SUMMARY:

This notice announces the availability of the Federal Transit Administration's (FTA's) proposed Interim Guidance and Instructions: Small Starts Provision of the Section 5309 New Starts Program and requests your comments on it. The proposed guidance explains submission requirements and evaluation criteria that FTA plans to use to evaluate Small Starts projects in the interim period before publication of the Final Rule for Major Capital Investment Projects. FTA requests comments on the proposed interim guidance, which is available in DOT's electronic docket and on FTA's Web site.

DATES:

Comments must be received by July 10, 2006. Late filed comments will be considered to the extent practicable.

ADDRESSES:

You may submit comments [identified by DOT DMS Docket Number FTA-2006-24947] 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, DC, 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-2006-24947). 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:

Ron Fisher, Office of Planning and Environment, telephone (202) 366-4033, Federal Transit Administration, U.S. Department of Transportation, 400 Seventh Street, SW., Washington, DC 20590 or Ronald.Fisher@dot.gov.

SUPPLEMENTARY INFORMATION:

1. Background

The Safe, Accountable, Flexible, Efficient Transportation Equity Act—A Legacy for Users (SAFETEA-LU), enacted on August 10, 2005, established a new “Small Starts” program category for projects that seek less than $75,000,000 in funding from the Federal Transit Administration's (FTA's) Section 5309 New Starts Program and that have a total project cost of less than $250,000,000. SAFETEA-LU called for FTA to issue regulations to implement this new program category. Authorizations for Small Starts begin in Fiscal Year 2007. In addition, SAFETEA-LU made a number of other changes in FTA's New Starts Program (for projects too large to qualify as a Small Start). Consistent with SAFETEA-LU requirements to do so, FTA published a notice in the Federal Register on January 19, 2006, providing proposed revisions to FTA's New Starts Policy and draft New Starts Program guidance. This notice indicated that changes in the New Starts program required by SAFETEA-LU would be subject to a subsequent rulemaking and provided additional material describing possible approaches to implementing the changes which would be the subject of that rulemaking. In addition, on January 30, 2006, FTA issued an Advance Notice of Proposed Rulemaking (ANPRM) related to implementation of the Small Starts program category. In both Federal Register notices, FTA indicated that it expected that a single regulation would be issued to cover both Small Starts and New Starts and that a later Notice of Proposed Rulemaking would be issued covering both programs. As promised in the January 19, 2006, notice, on May 22, 2006, FTA issued a notice responding to the comments received on the proposed New Starts policy changes and draft Program Guidance, announcing the final policy changes and making available the final Program Guidance.

The statutory language in section 5309(e) of Title 49, United States Code, which establishes the Small Starts category, provides for some significant differences for the Small Starts program in comparison to the requirements for larger New Starts projects in section 5309(d). The eligibility for funding is broader, including certain “corridor-based bus capital projects,” rather than only new “fixed guideway” systems and extensions. As noted above, projects are limited to those with a proposed section 5309 amount of less than $75,000,000 and a total project cost of less than $250,000,000. Recognizing the smaller size of the projects to be funded, a number of simplifications are put in place. First, the project justification criteria are simplified, focusing on three criteria—cost-effectiveness, public transportation supportive land use policies, and effect on local economic development—rather than the more extensive list provided for in section 5309(d). The criteria for local financial commitment have been simplified to focus only on a shorter term financial plan. The project development process has three steps—alternatives analysis, project development, and construction—rather than the four steps—alternatives analysis, preliminary engineering, final design, and construction—in the section 5309(d) process. Finally, the instrument used for implementing these Small Starts projects is a “project construction grant agreement,” which is to be structured as a streamlined version of the “full funding grant agreement” required for larger New Starts projects under section 5309(d).

2. Summary

As noted in the May 22, 2006, notice, FTA received numerous comments on both the January 19, 2006, notice on New Starts and the January 30, 2006 ANPRM on Small Starts. It has become clear that the issues involved in developing the New Starts/Small Starts regulations are complex. Given the depth of interest among FTA's stakeholders and the time needed to develop an NPRM, it is clear that it will not be possible for the NPRM to be developed and issued, comments received and addressed, and a Final Rule published before the start of Fiscal Year 2007. While the existing New Starts regulation can continue to be used to govern the New Starts program, the process in place is not consistent with the simplifications intended for the Small Starts program. FTA does not feel it would be consistent with the legislative intent for this new program category to require candidate projects for funding under this category to be subject to the same level of analysis now required for New Starts projects until a Final Rule can be promulgated. Thus, FTA has developed and is hereby making available proposed Interim Guidance on Small Starts. The proposed guidance is intended to allow project sponsors to begin to develop candidate Small Starts projects for evaluation and potential funding in fiscal year 2007 and to permit projects to be evaluated for possible inclusion in the fiscal year 2008 New Starts Report, to be issued in February 2007.

In developing the proposed Interim Guidance for Small Starts, FTA's primary goal was to account for the intent of SAFETEA-LU to develop project development processes and evaluation criteria that are simpler than those required for New Starts. At the same time, FTA recognizes that there may be additional streamlining steps that may be taken as part of the rulemaking process. On the other hand, the final results of the rulemaking process cannot yet be predicted. Pending the results of that process, FTA wants to make sure that project sponsors would not be faced with a situation in which project sponsors might have to be required to go back and do additional work to comply with the requirements in the Final Rule. Thus, the Interim Guidance is largely based on the current New Starts project development and evaluation process, simplified to account for those differences that are clearly defined in SAFETEA-LU. In addition, FTA has created a sub-category of Very Small Starts projects, which by their very nature will be rated as “Medium”. While FTA is seeking comment on all aspects of the Interim Guidance, in particular, FTA is interested if there are other ways to streamline the financial reporting and land use requirements and whether it is appropriate, in the interim, to evaluate economic development as an “Other Factor”. Furthermore, FTA seeks comments on its approach to using the same cost-effectiveness breakpoints that are currently applied to all New Starts projects, but adjusted upward using a nationally estimated 20-year growth forecast applied to the user benefits of the opening year to account for the additional user benefits that are expected to accrue from the project over a 20 year period. Project sponsors would not be required to submit anything other than opening year forecasts, as required by SAFETEA-LU, but projects would not be penalized by the fact that the current breakpoints were originally calculated assuming a 20 year forecast.

FTA will be exploring further simplification and process improvements both for Small Starts and New Starts as it develops the NPRM. Comments on the ANPRM, the January 19, 2006, notice, and the guidance made available by this notice will be taken into account in that process. FTA believes that the approach contained in the proposed Interim Guidance may be streamlined further in the NPRM and Final Rule. Project sponsors complying with the proposed Interim Guidance would thus be assured that they would easily comply with the Final Rule.

Although FTA is not providing a detailed summary of the comments received on the ANPRM at this time, FTA did take the comments into account in developing the proposed Interim Guidance. The proposed Interim Guidance is not intended to fully address all of the changes which may be proposed in the Final Rule. Further, the proposed Interim Guidance is being made available for comment at this time. Thus, FTA felt it was more appropriate to summarize the comment on both the original ANPRM and on this Notice when the NPRM is issued and it will summarize comments received on the proposed Interim Guidance when it is published as final in the Federal Register.

FTA has posted the proposed Interim Guidance on its Web site as well as in the docket for this notice. Comments should be made to the docket in accordance with the instructions provided above.