[Senate Report 109-62]
[From the U.S. Government Publishing Office]
Calendar No. 94
109th Congress Report
SENATE
1st Session 109-62
======================================================================
AMENDING CHAPTER 53 OF TITLE 49, UNITED STATES CODE, TO IMPROVE THE
NATION'S PUBLIC TRANSPORTATION AND FOR OTHER PURPOSES
_______
April 28, 2005.--Ordered to be printed
_______
Mr. Shelby, from the Committee on Banking, Housing, and Urban Affairs,
submitted the following
R E P O R T
together with
ADDITIONAL VIEWS
[To accompany S. 907]
[Including cost estimate of Congressional Budget Office]
The Committee on Banking, Housing, and Urban Affairs,
reported an original bill (S. 907) to amend chapter 53 of title
49, United States Code, to improve the Nation's public
transportation and for other purposes, having considered the
same, reports favorably thereon without amendment and
recommends that the bill do pass.
History of the Legislation
The bill reported by the Committee incorporates proposals
developed in consultation with the Administration, leading
transit authorities, and transit-related industry leaders from
across the country. Beginning soon after passage of the
Transportation Equity Act for the 21st Century (TEA-21), the
Committee began an aggressive schedule of hearings to evaluate
the effectiveness and implementation of TEA-21 policies. The
below descriptions detail the series of hearings that went into
development of the Federal Public Transportation Act of 2005.
In 2000, the Committee held hearings on labor protection
provisions of the Federal transit program. The first hearing,
entitled ``The Ability of the U.S. Department of Labor to Delay
or to Derail Mass Transit Projects that have been Approved and
Funded by Congress,'' was held on April 25, 2000. Testifying on
behalf of the Administration was the Honorable Nuria Fernandez,
Acting Administrator of the Federal Transit Administration
(FTA) and Mr. Bernard Anderson, Assistant Secretary for the
Employment Standards Administration at the U.S. Department of
Labor. Also testifying were: Mr. John Anderson, Jr., Director
of the Transportation Issues, Resources, Community, and
Economic Development Division at the Government Accountability
Office (GAO); Mr. James La Sala, International President of the
Amalgamated Transit Union; Mr. Charles Moneypenny, Legislative
Representative at the Transport Workers Union of America; Mr.
Roger Snoble, President and Executive Director of the Dallas
Area Rapid Transit Authority; Mr. Lee Gibson, Assistant General
Manager for Transit and Chief Operating Officer of the Regional
Transportation Commission of Clark County, Nevada; and Mr.
James Stoezel, Railroad Operations and Management Consultant at
Transit Safety Management (on behalf of Bay State Transit
Services, Inc.).
The second hearing, entitled ``The FTA's Approval of
Extending the Amtrak Commuter Rail Contract'' was held on July
11, 2000. The hearing examined conflicts between State and
Federal laws concerning competitive bidding requirements after
a prolonged contract dispute involving Amtrak. The Honorable
Nuria Fernandez, acting Administrator of the Federal Transit
Administration, testified on behalf of the Administration. Mr.
George Warrington, President and Chief Executive Officer of the
National Railroad Passenger Corporation (Amtrak) also
testified.
On October 4, 2001, the Committee held a hearing entitled
``Transit Safety in the Wake of September 11,'' in order to
scrutinize the various security threats potentially facing
public transportation and evaluate Federal, state and local
efforts to combat them and improve transportation security
overall. The Honorable Jennifer Dorn, Administrator of the
Federal Transit Administration testified on behalf of the
Administration. Also testifying were: Mr. William Millar,
President of the American Public Transportation Association
(APTA); Mr. Robert Molofsky, General Counsel to the Amalgamated
Transit Union; and Mr. Richard White, General Manager of the
Washington Metropolitan Area Transit Authority (WMATA).
On March 13, 2002, the Committee held a hearing on
implementation and reauthorization of TEA-21, entitled
``Transit in the 21st Century: Successes and Challenges (Part
I).'' The hearing explored the Administration's principles for
reauthorization and ways in which the Congress could further
improve upon current law. The Honorable Norman Mineta,
Secretary of the Department of Transportation (DOT) testified
on behalf of the Administration. Also testifying were: Mr.
William Millar, President of the American Public Transportation
Association; Mr. Dale Marsico, Executive Director of the
Community Transportation Association of America; and Mr. John
Inglish, General Manager of the Utah Transit Authority.
On April 25, 2002, the Committee held a hearing entitled
``Transit in the 21st Century: Successes and Challenges (Part
II).'' The hearing explored the diversity of transportation
needs in urban, rural and suburban communities and the various
challenges each of these communities must try to satisfy. The
Honorable Jennifer Dorn, Administrator of the Federal Transit
Administration testified on behalf of the Administration. Also
testifying were: Ms. Faye Moore, General Manager of the
Southeastern Pennsylvania Transportation Authority; Dr. Beverly
Scott, General Manager of the Rhode Island Public
Transportation Authority; and Mr. Larry Worth, Executive
Director of the Northeastern Colorado Association of Local
Governments.
Testifying on June 13, 2002, in a hearing entitled ``TEA-
21: A National Partnership,'' were the Honorable Carolyn
Kilpatrick, a U.S. Representative in Congress from the State of
Michigan; also testifying were: the Honorable Kwame Kilpatrick,
the Mayor of Detroit, Michigan; the Honorable H. Brent Coles,
the Mayor of Boise, Idaho; and the Honorable Kenneth Mayfield,
County Commissioner of Dallas County, Texas. This hearing
continued to identify the particular public transportation
needs of different regions and communities across the country
and highlighted the similarity of benefits public
transportation infrastructure confers on both urban and rural
communities.
On June 26, 2002, the Committee held a hearing entitled
``TEA-21: Investing in Our Economy and Environment.'' The
Committee heard testimony from Mr. Carl Guardino, President and
Chief Executive Officer of the Silicon Valley Manufacturing
Group; Mr. Herschel Abbot, Jr., Vice-President of Governmental
Affairs for the BellSouth Corporation; Mr. Robert Broadbent,
Manager of the Las Vegas Monorail Company; Mr. Hank Dittmar,
President of the Great American State Foundation (on behalf of
the Surface Transportation Policy Project); and Mr. Michael
Replogle, Transportation Director of Environmental Defense. The
hearing examined the potential for conflicts between economic
development and environmental protection and ways in which
public transportation can help reconcile these two important
objectives.
On July 17, 2002, in a hearing entitled ``Transit: A
Lifeline for America's Citizens,'' the Committee received
testimony from Ms. Jessie Tehranchi of Birmingham, Alabama; Ms.
Gloria McKenzie of Albany, New York; Ms. Faye Thompson of
Kenova, West Virginia; Ms. Lavada DeSalles, a Member of the
Board of Directors for the American Association of Retired
Persons (AARP); Mr. Andrew Imparato, President and Chief
Executive Officer of the American Association for People with
Disabilities; and Mr. John Porcari, Secretary of the Maryland
Department of Transportation. The hearing explored the value of
public transportation to many elderly, disabled and rural
persons and the extent to which these individuals depend upon
robust transportation systems in order to maintain their
freedom, health and economic independence.
On September 18, 2002, the Committee held a hearing
entitled ``Transit Security: One Year Later'' in order to
review the security needs of transit providers after the events
of September the 11th and to assess the impact of security
measures already taken. The Committee heard testimony from the
Honorable Jennifer Dorn, Administrator of the Federal Transit
Administration on behalf of the Administration. Also testifying
were: Mr. Peter Guerrero, Director of Physical Infrastructure
Issues for the Government Accountability Office.
On October 8, 2002, the Committee held a hearing entitled
``Perspectives on America's Transit Needs.'' The hearing
examined the limitations of the current public transportation
system in the face of growing demand; it also explored the
specific needs of growing states and the importance of public
transportation to many workers and to the economy. The
Honorable Jennifer Dorn, Administrator of the Federal Transit
Administration, testified on behalf of the Administration. Also
testifying were: The Honorable Patrick McCrory, Mayor of
Charlotte, North Carolina; Mr. Eric Rodriguez, Director of the
Economic Mobility Initiative for the National Council of La
Raza; Mr. Wendell Cox, Visiting Fellow at the Heritage
Foundation and Principal at Wendell Cox Consultancy; Mr. Roy
Kienitz, Secretary of the Maryland Department of Planning; Mr.
David Winstead, of the Maryland Chamber of Commerce and
Chairman of the Transportation Coalition, on behalf of the U.S.
Chamber of Commerce.
On June 10, 2003, the Committee held a hearing entitled
``The Administration's Proposal for Reauthorization of the
Federal Transportation Program.'' During this hearing, the
Committee explored the Administration's public transportation
reauthorization proposal and ways in which the Congress could
improve upon it. The Honorable Norman Mineta, Secretary of the
Department of Transportation, testified on behalf of the
Administration. Also testifying were: Mr. William Millar,
President of the American Public Transportation Association;
Mr. Jeff Morales, Director of the California Department of
Transportation; Mr. Robert Molofsky, General Counsel to the
Amalgamated Transit Union; Mr. Jim Seal, Consultant to the
Federal Transit Administration; and Mr. Woody Blunt of the
American Bus Association.
On June 24, 2003, the Committee held a hearing entitled
``Bus Rapid Transit and Other Bus Service Innovations.'' This
hearing examined Bus Rapid Transit (BRT), a new modal
technology, and its significant quality and reliability
benefits over traditional bus services, as well as its cost
savings compared to other transportation alternatives,
particularly light rail. The Honorable Jennifer Dorn,
Administrator of the Federal Transit Administration, testified
on behalf of the Administration. Also testifying were: Ms.
JayEtta Hecker, Director of Physical Infrastructure Issues for
the Government Accountability Office; Mr. Gary Brosch, Chairman
of the National Bus Rapid Transit Institute at the University
of South Florida and the Center for Urban Transit Research at
the University of California, Berkeley; Mr. Kenneth Hamm,
General Manager of the Lane Transit District, located in
Eugene, Oregon; Mr. Oscar Diaz, assistant to Mr. Enrique
Penalosa, Administrative Director of the Institute for
Transportation and Development Policy; Ms. Anne Canby,
President of the Surface Transportation Policy Project.
On July 23, 2003, the Committee held a hearing entitled
``Enhancing the Role of the Private Sector in Public
Transportation.'' During this hearing, the Committee attempted
to ascertain ways in which the Federal Government could foster
increased involvement by the private sector with public
transportation and ways to foster partnerships between the
private and public sectors. Testifying were: Mr. Irwin
Rosenberg, President of the American Transit Services Council
and Vice-President of Government Relations to Laidlaw Transit
Services, Inc.; Mr. Robert Molofsky, General Counsel to the
Amalgamated Transit Union; Mr. Peter Pantuso, President and
Chief Executive Officer of the American Bus Association; and
Ms. Margie Wilcox, Co-Chair of the Paratransit and Contracting
Steering Committee for the Taxicab, Limousine, and Paratransit
Association.
Finally, on March 17, 2005, the Committee conducted a mark
up of an original bill, ``The Federal Public Transportation Act
of 2005,'' to reauthorize the public transportation portion of
TEA-21. The Committee, by unanimous consent, ordered the bill,
as amended, to be reported. The reauthorization was for a
period of six years through September 30, 2009. The bill
authorized $51.6 billion for Federal transit programs over the
six-year period from fiscal years 2004 to 2009.
Need for Legislation
Public transportation services are often the only form of
transportation available to many citizens. These services
provide mobility to the millions of Americans who cannot, for
various reasons, use an automobile. More than 80 million
Americans, almost one-third of the U.S. population, cannot
drive or do not have access to a car. Senior citizens are the
fastest growing segment of the U.S. population; many of them
require access to public transportation in order to maintain
their independence and to access vital healthcare services.
Millions of Americans with disabilities also require reliable
and safe public transportation in order to access basic
services.
An estimated 10 million people use transit each workday.
Nearly 30 million Americans ride transit during any given
month. More than half (54 percent) of all trips on transit are
for the purpose of employment. People who choose to use public
transportation come from every income level and demographic
background. Federal transportation programs are no longer
solely urban-centered. TEA-21 has provided transportation
funding to both urban and non-urban areas. As a result,
transportation in rural America dramatically improved under
TEA-21. Today, rural transportation providers carry riders a
billion miles each year. Rural areas have a higher incidence of
elderly and disabled populations, and a higher percentage of
low-income persons than urban areas. It is estimated that the
rural U.S. alone has 30 million non-drivers, including senior
citizens, the disabled and low-income families. Today, the
American public transportation industry consists of nearly
6,000 transit systems in both urban and rural areas. These
transportation agencies operate a diverse array of vehicles,
including subways, buses, light rail, commuter railroads,
ferries, vans, cable cars, aerial tramways, and taxis. Non-
profit elderly and disabled service providers constitute almost
two-thirds of systems.
In its report, 2002 Status of the Nation's Highways,
Bridges and Transit: Conditions and Performance, the U.S.
Department of Transportation estimated that annual public
transportation investment requirements, at a minimum, are $14.8
billion (in year 2000 dollars) just to maintain the conditions
and performance of the Nation's transit systems at their 2000
level. To improve the average condition of transit assets to
``good'' by 2020, as well to improve performance by increasing
transit speeds and reducing occupancy rates, would require an
additional $5.8 billion per year for a total average annual
capital investment of $20.6 billion (in year 2000 dollars).
In the reports on highway, bridge and transit conditions
and performance, the U.S. Department of Transportation also
estimates the value of a variety of benefits generated by
public transportation. These include benefits of basic
mobility, location efficiency, and congestion management. The
benefits of basic mobility have been estimated at $27 billion
(in year 2005 dollars). These are benefits to low-income users
who would otherwise not have access to jobs, shopping, and
other needs, because they have limited or no access to
automobiles. Location efficiency was estimated to be worth $23
billion. These benefits come from more efficient transit-
oriented land use patterns that help reduce the need for trips
or the length of trips. The benefits of congestion relief
provided by transit are estimated at $20 billion. This estimate
is based on the travel-time savings from using transit and the
reduction in highway user costs as trips are attracted from the
highway system to transit.
According to the Texas Transportation Institute's (TTI)
``2004 Urban Mobility Report,'' congestion costs $63 billion,
more than 3.5 billion hours of delay and 5.7 billion gallons of
excess fuel annually. The average driver loses more than a week
of work (46 hours) each year sitting in gridlock. The same
report finds that without public transportation, there would be
1.1 billion more hours (29% more) of delay. In sum, the TTI
report also finds that public transportation reduces the cost
of congestion by about $20 billion per year.
Public transportation investments help create employment
and sustain economic health. The Department of Transportation
has estimated that for every $1 billion in Federal highway and
transit investment, 47,500 jobs are created or sustained.
Furthermore, according to a Cambridge Systematics, Inc. study,
for every $10 spent on transit capital projects, $30 in
business sales is generated. A recent report by Robert Shapiro
of the Progressive Policy Institute and Kevin Hassett of the
American Enterprise Institute estimated that U.S. companies and
individuals derive over $788 billion per year in direct
economic benefits from the nation's surface transportation
system (including public transportation). These benefits are
produced by direct economic costs of $185 billion per year in
building, operating, and maintaining the systems, leaving at
least $603 billion per year in net economic benefits.
The air quality benefits of public transportation over
single occupant vehicle use are also well documented. While
diminishing roadway traffic, transit reduces auto-related
pollution and fuel consumption. America's transit travel, in
replacing automobile travel, stops over 126 million pounds of
hydrocarbons--a primary cause of smog--and 156 million pounds
of nitrogen oxides from being released into the atmosphere.
The Transportation Equity Act for the 21st Century (TEA-21)
expired on September 30, 2003, and has temporarily been
extended through May 31, 2005. The delay in providing a long-
term authorization has had a significant impact on State and
local governments which have been unable to develop long-term
programs for funding. Public transportation represents an
important part of the Nation's transportation infrastructure,
which by its nature requires long-term planning and project
development. Delays in funding have resulted in project delays
which ultimately increase costs and delay the benefits which
projects are designed to produce. The impact is particularly
significant in States with short construction seasons since
planning must be done well in advance of contracting for
construction. The Committee has responded and taken action to
reauthorize the public transportation title of TEA-21 in order
to continue the Federal Government's critical role in public
transit programs.
Background
Although TEA-21 returned much of the decision-making
authority to state and local Governments, TEA-21 maintained a
strong Federal role in the capital financing of public
transportation. TEA-21 has worked exceptionally well because of
four basic principles: flexibility on funding decisions for
state and local Governments, the encouragement of public
participation in the planning process, an emphasis on
intermodal connectivity, and the promotion of environmentally
sound approaches to transportation delivery. TEA-21 provided
opportunities for state and local officials to use highway and
transit funds flexibly for surface transportation projects.
This flexibility has provided local decision makers with the
tools to invest in the best transportation solutions for that
area, regardless of mode. The transportation planning
provisions of TEA-21 are important to metropolitan areas and
transit systems, as they allow for a balanced planning process
that looks at all feasible local solutions and provides for
appropriate citizen participation in the planning process. TEA-
21 specifically requires that local governments consult with
the public to decide among the various transportation options.
While the program structure provided by TEA-21 is
fundamentally sound, there are a number of areas in which
improvements are needed. First, current funding formulae do not
fully reflect the wide range of transit needs. Specifically,
funding formulae look only at current population and transit
service factors, and hence are not capable of providing
resources to develop new services in areas now not well served
by transit, nor to get ahead of problems before they become
difficult to address. In response, the bill adds several new
formulae, the better to represent growing transit needs
throughout the country including: a Growing States Formula, a
High Density Formula, a Rural Low Density Formula, and a
Transit-Intensive Formula. In addition, the bill increases
funding for bus/bus facilities and sets aside funding for
intermodal bus facilities to address the needs of the majority
of communities which have bus-only systems. Existing labor
protections have not been changed since the program was first
authorized in the 1960's. To conform to changes in the
industry, the economy, and other Federal programs, the bill
harmonizes requirements for labor protection for transit
workers with existing federal railway Class III labor statute.
The improvements made by ISTEA and TEA-21 to the FTA New
Starts program have significantly improved the accountability
of the program. In general, New Starts projects are well
supported by analysis, and are now producing good value for
money. However, more can be done to assure that the widest
range of public transportation investments are eligible for
funding and to assure that project sponsors have the best
information available when they develop projects. Accordingly,
the bill makes less-expensive, more flexible Bus Rapid Transit
an eligible project for Full Funding Grant Agreements (FFGA) by
eliminating the limitation that only fixed guideway projects
are eligible for Small Starts funding. It establishes a ``Small
Starts'' program for projects seeking $75 million or less in
New Start funds. These projects would undergo a more
streamlined rating process than projects in excess of $75
million. The current exemption for projects under $25 million
is eliminated and thus all projects receiving funding would get
analyzed and rated. The bill allows FTA to reward transit
agencies with a higher federal match for those projects whose
cost and ridership estimates are within a 10% range of original
forecasts available to decisionmakers at the time the
particular transportation option was selected. It also
establishes an annually-updated Contractor Performance
Assessment Report (CPAR) which analyzes the consistency and
accuracy of cost and ridership estimates to provide transit
agencies a tool to assist in choosing contractors with the
highest success rates. Finally, it requires FTA to conduct
``Before and After'' studies to look at the extent to which New
Starts projects met their cost and ridership projections.
The flexibility and incentives provided by ISTEA and TEA-21
have improved the performance and efficiency of public
transportation. The bill being reported makes a number of
changes to continue these favorable trends. It makes private
operators of public transportation ``sub-recipients'' of
federal grant funds, thereby fostering competition and creating
an opportunity for lower costs and greater service
improvements. It requires coordination of social service
transportation throughout the program by providing incentives
to States that eliminate duplication, reduce overlap, and
improve service. Finally, the bill increases the focus on
safety, security and crime prevention in response to the events
of September 11, 2001 and continued terrorist threats against
transit systems by increasing the eligibility for security-
related activities in each step of the process from planning to
maintaining systems.
Section By Section Analysis
Sec. 1. Short title
The Federal public transportation program now covers rural
and other non-urban constituencies, as well as urbanized areas.
Accordingly, the title of this bill is meant to reflect this
evolution by referring to ``public'' transportation instead of
``mass'' transportation.
Sec. 2. Updated terminology; Amendments to title 49, United States Code
For the reasons expressed above, throughout Chapter 53, the
term ``mass transportation'' is replaced, where appropriate,
with ``public transportation.'' ``Public'' is more
representative of the wider range of services now being
provided throughout the country, and is the term more commonly
used by the industry.
Sec. 3. Policies, findings, and purposes
Section 5301(a) currently states that it is in the national
interest to encourage and promote the development of
transportation systems because they maximize mobility and
minimize transportation-related fuel consumption and air
pollution. This provision highlights the positive impact on the
Nation's economy as a result of the development and
revitalization of public transportation systems.
The finding in Section 5301(b)(1) is updated to reflect the
2000 Census of Population as the outdated census data
referenced in the original section is not current.
Currently, Section 5301(e) requires that a special effort
be made to preserve the environment and important historical
and cultural assets when carrying out capital programs funded
under Sections 5309 and 5310. These principles should apply to
all Chapter 53 public transportation programs. Therefore, this
bill amends Section 5301(e) to reflect this objective.
Sec. 4. Definitions
Makes the intercity bus portion of intermodal
terminals eligible for funding.
Makes capital costs related to crime prevention
and security, as well as emergency response drills and training
(but not other operating expenses), eligible program-wide.
Allows transit operators to fund debt service
reserves with capital funds.
Defines ``mobility management'' as an eligible
cost in the urbanized area formula program.
Restates the definition of ``local public
transportation.''
The definition of ``capital project'' is amended to make
the intercity bus portions of intermodal terminals or
transportation malls eligible for assistance in all Chapter 53
programs.
Capital costs for crime prevention and security currently
are allowable as formula grant expenditures. In addition,
specific capital grant making authority for crime prevention
and security is only found in Section 5321 of Title 49, U.S.C.
This section has never received a direct appropriation and,
therefore, is repealed. In its stead, the definition of
``capital project'' under Section 5302(a)(1), which applies to
the entire FTA program, is amended to include capital security
needs and planning as well as emergency response drills and
training, but not other operational costs related to crime
prevention and security.
The Committee believes that improved integrated,
interoperable, emergency communications infrastructure are one
way for transit operators to improve their response to
emergency situations, and that such expenditures are eligible
capital expenditures under the bill.
The term ``capital project'' is expanded to include a debt
service reserve to allow transit agencies to borrow money less
expensively. Under this approach, a grantee would temporarily
set aside grant funds to establish the reserve. The reserve
would be available to make payments to repay a portion of the
borrowing should other pledged funds become unavailable. By
having such a reserve in place, the risk of the borrowing is
reduced, and the interest rate is likely to be substantially
lower, thus reducing the cost of the borrowing.
Section 5307 is amended to allow grantees to use their
urbanized area formula grants for ``mobility management.''
Therefore, Section 5302, ``Definitions,'' is amended to define
the term ``mobility management.'' This term refers to an
activity or project that tailors public transportation services
to specific markets and manages demand for public
transportation. Such goals could be accomplished by
coordinating transportation service provider strategies and
enhancing ridership growth in a cost-effective and efficient
manner. Mobility management functions would involve managing
public transportation travel logistics and would focus on
resolving consumer mobility issues. Mobility managers could
serve as transportation travel agents, consumer advocates, and
service coordinators.
The definition of ``public transportation'' is essentially
the same as the definition of ``mass transportation'' in
current law. An additional reference to ``local'' is added
however, to codify current practice of providing transportation
service that serves a specific urbanized or rural area and its
environs. Intercity services (bus or rail) are not intended to
be assisted under this Chapter, except for intercity bus
services under Section 5311(f), and the newly-provided
eligibility of the intercity bus portion of intermodal
terminals and the already-eligible intercity rail portions of
intermodal terminals.
The definition of ``urbanized area'' is revised to reflect
the Department of Commerce's role in designating urbanized
areas via the decennial Census.
Technical changes are made to the definition of ``capital
projects'' to clarify that new projects can be either
innovative or improved, rather than having to be both
innovative and improved.
Technical changes are made to the definition of ``transit
enhancements'' to clarify that a project may include any of the
list of historic preservation activities. In addition,
technical changes are made to clarify that projects may include
pedestrian access or walkways.
Sec. 5. Metropolitan planning
Locates all provisions for metropolitan planning
in Section 5303.
Maintains the requirement for separate
Transportation Plans and Transportation Improvement Programs.
Requires certification of the planning process
every four years.
The provision in current law allowing the planning
process to be certified even if the requirements for private
sector participation are not met is repealed; however, language
is added to clarify that local criteria will be the basis for
such decisionmaking.
Strengthens the requirement for public
participation in the planning process.
Section 3005 rewrites Section 5303 as a single section on
Metropolitan Planning, to put all of these provisions in a
single section identical to that in Title 23, U.S.C. Because
transit and highways are authorized in separate Senate
Committees, this is accomplished in Section 5303 and in Section
5304 for Statewide Planning. Since the entire section is
rewritten, most of the language is repeated, but changes are
not made unless where expressly noted.
Section 5303(a) includes definitions used in Sections 5303
and 5304 which are unique to the planning programs.
Section 5303(b) provides general requirements for the
planning process. Section 5303(b)(1) revises existing law by
substituting the word ``metropolitan'' for ``urbanized.''
Metropolitan is a more accurate representation of the terms
used in this section since the term better represents urbanized
areas and the areas that are anticipated to become urbanized
over a twenty-year period.
Section 5303(b)(4) provides that the Metropolitan Planning
Organization (MPO), the State DOT, and the appropriate public
transit provider agree on the approaches that will be used in
the metropolitan decisionmaking process regarding complex
transportation improvements. This section indicates that
planning and sponsoring organizations are jointly responsible
for the planning and development of projects.
Section 5303(c) provides procedures and requirements for
designation of metropolitan planning organizations. Section
5303(c)(1)(A) modifies existing law to reflect a change in
procedure by the U.S. Census Bureau in defining central cities.
Section 5303(c)(2) modifies existing law to clarify
terminology regarding a transportation management area (TMA).
The current statute uses the term ``designation'' regarding
both the institution responsible for metropolitan planning (the
MPO) and the kinds of areas which must be established as a TMA.
It also links the two by indicating that when a TMA is
``designated,'' certain requirements apply, including changes
in MPO board membership and certification. TMAs are established
by the Secretary based on population information from the
Census Bureau. MPOs may be designated and redesignated upon
agreement of local officials and the Governor at any time. To
clarify that the geography identification does not force a
change in the MPO policy board, the word ``identified'' is used
to denote the establishment of a TMA, leaving the term
``designated'' for the process of establishing an MPO.
Section 5303(c)(2)(B) modifies existing law to remove an
obsolete provision relating to MPO membership in 1991. There is
no continuing need for this provision.
Section 5303(c)(5) is a technical change to reflect that
the Census Bureau has changed the terms it uses. The Census no
longer uses the term ``central city'' and thus that reference
is deleted and replaced by ``largest incorporated city'' which
is used by the Census Bureau in naming the urbanized area.
Section 5303(d) provides details on the way in which the
boundaries of metropolitan planning areas are established.
Section 5303(d)(2)(B) is a technical change to reflect the
reality that the Office of Management and Budget, not the
Census Bureau, designates standard metropolitan statistical
areas.
Section 5303(d)(3) clarifies that a new MPO need not be
created if a new urbanized area is designated inside an
existing metropolitan planning area. Although it would not be
prohibited under this provision, designation of a second MPO is
not required.
Sections 5302 (e) and (f) include requirements for how MPOs
are to coordinate when plans and planned projects affect
adjacent areas.
Section 5303(f)(3) is added to emphasize the need for
coordination where an improvement does not actually cross an
MPO boundary, but still has impacts outside the boundary.
Section 5303(f)(4) is added to encourage coordination of
the transportation planning process with other types of
planning activities that are affected by transportation,
including State and local planned growth initiatives, economic
development, environmental protection, airport operations,
housing, and freight.
Section 5303(g) provides details on the scope of the
planning process and the factors which are to be considered.
Sections 5303(g)(1)(B) and (C) modify existing law to give
added emphasis to security and safety by making each a separate
planning factor.
Section 5303(g)(1)(E) is amended to provide more detail on
how protection of the environment is to be considered and would
add a reference to planned growth patterns. In addition,
subparagraphs (A), (D), (F), and (H) under Section 5303(g)(1)
reference opportunities to engage public and private operators
in the metropolitan planning process.
Section 5303(h) details how transportation plans are to be
developed. The section modifies existing law by dropping the
adjective ``long-range'' in association with the plan. There is
only one plan and it has a 20-year horizon. The continued use
of ``long-range'' reinforces the perception that there is a
``short-range'' or another plan that must also be created.
A new Section 5303(h)(2) provides details on the mitigation
activities which must be considered in developing
transportation plans.
Section 5303(h)(3)(C) modifies existing law to strengthen
the importance of operations and management in the planning
process.
Section 5303(h)(4) is added to ensure consultation between
the MPO and various land use management, natural resource, and
environmental protection agencies. Section 5303(h)(5) modifies
existing law to encourage stronger coordination among
transportation and air quality planning processes.
Section 5303(i) provides details on public participation in
the planning process. The list of parties participating in
planning is expanded to explicitly include private providers.
It also adds bicyclists and pedestrians to the list of parties
afforded a specific opportunity to comment on the plan before
its approval. The provision requires development of a
participation plan in consultation with interested parties.
Participation is required both on the plan itself, as well as
on the process for developing the plan. MPOs must certify that
they have complied with their participation plan before the
transportation plan can be approved.
Section 5303(j) provides details on the transportation
improvement program. The program update cycle is set at every
four years. Current project selection requirements are modified
to indicate that the State is responsible for selection of
projects in the State managed programs. A new provision is
added at Section 5303(j)(4)(B) which requires publication of
the projects for which funds have actually been obligated. A
rulemaking is required within 120 days, specifying certain
details about how such project lists should be published so
that the public can better access the information.
Section 5303(k) specifies how transportation management
areas are identified and the planning processes required in
such areas. The section modifies existing law to provide
clarification to the meaning of transportation management
areas. The term ``designation'' is replaced by
``identification'' to reduce confusion between institutional
change and geographic area identification. The section allowing
a request to designate an area below 200,000 in population is
eliminated because it has seldom been used, and has no direct
funding implications. The term ``metropolitan planning
organization serving'' is added to clarify the fact that a TMA
is a geographic area, not an institution that conducts
planning.
Section 5303(k)(3) modifies existing law to streamline and
integrate the congestion management process into the overall
planning process and plan development.
Section 5303(k)(4) modifies existing law on selection of
projects for implementation to highlight the role of the MPO as
an institution, as discussed above.
Section 5303(k)(5) modifies existing law to reflect the
focus on the MPO planning process and to clarify that all
Federal funds available to the metropolitan area can be
withheld as a sanction for not being certified. The minimum
cycle for certification is extended to four years in
nonattainment and maintenance areas and five years in
attainment areas.
Current language prohibiting decertification for failure to
meet the private sector participation requirements in Section
5306 is not reenacted. Section 5306 is modified to make clear
that local criteria will be the basis for deciding on how to
address these requirements.
A provision related to transfer of ISTEA funds is removed
because it is outdated. Transfer of funds is still covered by
23 U.S.C. 104(k).
Section 5303(l) modifies existing law to reflect
streamlining and integration of congestion management planning
into the overall planning process.
Section 5303(m) provides additional requirements for
nonattainment areas.
Section 5303(n) continues current law with regard to the
authority of MPOs with respect to other agencies.
Section 5303(o) indicates that funds set aside under 23
U.S.C. 104(f) and 49 U.S.C. 5308 are available to carry out the
metropolitan planning process.
Section 5303(p) continues current practice and law on the
relationship of transportation plans and the National
Environmental Policy Act.
Sec. 6. Statewide Planning
Statewide planning requirements are included in
Title 49 explicitly, rather than only by reference to 23 U.S.C.
135.
The statewide provisions currently in 23 U.S.C.
135 are modified to conform to the changes made to the
metropolitan planning process.
A Statewide Transportation Improvement Program is
continued with projects drawn from the Metropolitan
Transportation Improvement Program.
A completely revised Section 5304--Statewide Planning
incorporates, with revisions, existing Section 135 of Title 23
and provides a common statewide planning section for both FTA
and FHWA. The descriptions below refer only to the revisions
made.
The term ``long-range'' which modifies ``transportation
plan'' is deleted, since the plan is already identified as a
20-year plan.
TEA-21 used various references when describing local
officials in rural areas. A consistent reference is now used
throughout: ``affected officials with responsibility for
transportation.''
``Non-metropolitan local officials'' is defined in a new
Section 5303(a)--Definitions.
Existing Section 135(a)(2) of Title 23 is incorporated in
Section 5304(a)(1), with amended language: ``To accomplish the
objectives stated in Section 5301(a)'' inserted before ``each''
and ``Subject to . . . Title 49'' deleted; ``subject to Section
5303'' is added after the end of the paragraph.
Existing Section 135(b) of Title 23 is now incorporated in
Section 5304(b), with added language: ``with other related
Statewide planning activities such as trade and economic
development and related multi-State planning efforts,'' after
``areas of the State and'' to recognize the importance of trade
and economic development in each State and with other States.
Section 5304(c) is added to allow States to enter into
compacts or agreements for the purpose of formal planning
cooperation and coordination, since so many projects have
multi-State implications. A similar provision is included in
existing Section 134(d)(2), Metropolitan Planning, and is
included in the metropolitan planning section in Section
5303(d)(2).
In Section 5304(d)(1), the phrase ``and implementing
projects and services'' is added after ``strategies'' to
reflect the concept that not only projects, but also
transportation services, are developed through the planning
process.
In Section 5304(d)(1)(A), the term ``non-metropolitan
areas'' is inserted into the planning factor related to
economic vitality after ``States.'' These have been often-
neglected areas and this would require States to consider
economic vitality for rural areas as well as urbanized areas.
(``Non-metropolitan areas'' is defined in a recent amendment to
the joint FHWA/FTA planning regulations).
Sections 5304(d)(1)(B) and (C) refer to existing law,
wherein ``security'' was a joint factor with ``safety.'' After
the terrorism attacks of September 11, 2001, security has taken
on a new dimension. Security would now be a separate factor in
subparagraph (C) to highlight this concern at all levels of
Government.
In Section 5304(d)(1)(D), the term ``options available to''
is deleted after ``mobility'' so that it is clear that this is
more complex than simply considering options.
Section 5304(d)(1)(E) is expanded to include more details
on the way in which environmental protections should be
considered. In addition, more detail is added on how plans
should be consistent with regional land use plans. Language is
added to require consistency, so that investments are made
where they will have the most significant impact.
A new Section 5304(d)(3) is added to focus on how
mitigation activities should be addressed in Statewide plans
and programs.
A new Section 5304(f)(2)(D) is added to require
consultation with land use management, natural resource,
environmental protection, conservation, and historic
preservation agencies.
The term ``representatives of transportation agency
employees,'' is replaced in Section 5304(f)(3) by
``representatives of public transportation employees,'' and the
term ``representatives of users of public transit,'' is
replaced by ``representatives of users of public
transportation'' to provide greater consistency with the
definitions in Section 5303(a). The term ``representatives of
users of pedestrian walkways and bicycle transportation
facilities,'' is inserted after the term ``users of public
transportation'' to identify the importance of this class of
users. In addition, new requirements are added to ensure
adequate opportunity for public participation.
A new paragraph, ``Existing System,'' is added in Section
5304(f)(8) to address the need for assessment of the existing
system to maximize its potential through various means, such as
Intelligent Transportation Systems.
A new Section 5304(f)(9) is added to provide for expanded
publication of the Statewide plan.
Section 135(f)(1)(B)(ii)(II) required that States submit to
the Secretary, within one year of TEA-21's passage, the details
of their consultation process with non-metropolitan officials.
This requirement has been accomplished, so the provision is
deleted.
Section 5304(g) provides for details on the Statewide
Transportation Improvement Program. Section 5304(g)(3)
(existing Section 135(f)(1)(C)) substitutes the term ``State''
for the term ``Governor.'' This reflects current practice in
most States. The same changes made for the listed parties in
Section 5304(f)(3) above are made in this section as well.
Section 5304(g)(4) establishes 4-year increments and
updates for the Statewide Transportation Improvement Program.
This is consistent with metropolitan planning requirements,
which provide that projects in the metropolitan transportation
improvement program may be selected for advancement. Provisions
similar to those in Section 5303 for a cooperative process in
arriving at the annual listing of obligated projects is
included. An annual list is included in Section 5304 since the
State is the recipient of substantial funds from both FTA and
FHWA.
Section 5304 (g)(4)(B)(ii) (existing Section
135(f)(2)(C)(ii)) is amended to ensure that the identical
projects programmed in the metropolitan transportation plans
are brought into the Statewide Transportation Improvement
Program without modifications.
In Section 5304(g)(5), Section 5311 of Title 49 is added to
the National Highway System, bridge, and other projects that
require ``consultation'' and that are excepted from
``cooperation'' since this program is generally run by the
States as a discretionary program after criteria are set.
Section 5304(g)(6) (existing Section 135(f)(4)) is renamed
``Statewide Transportation Improvement Program Approval'' and
would require a STIP approval ``at least every four years by
the Secretary.'' A new Section 5304(g)(7), Planning Finding,
(existing Section 135(f)(4)) is set out separately.
Sec. 7. Transportation management areas
Section 5305, which covers planning in Transportation
Management Areas, is repealed since its provisions have been
incorporated in Section 5303.
Sec. 8. Private enterprise participation
Clarifying language is added to make clear that
local criteria are to be the basis for deciding on how to
involve the private sector.
A rulemaking is required to implement all of the
changes made throughout the statute on private sector
participation.
Current language that prohibits decertification for failure
to meet the private sector participation requirements in
Section 5306 is not reenacted. All other planning requirements
must be met in order for the metropolitan planning process to
be certified. It is not appropriate to single out this
requirement for lesser attention in the planning process.
Section 5306 is modified to make clear that local criteria will
be the basis for deciding on how to address these requirements.
The bill makes a number of changes in Chapter 53 to enhance
the role of the private sector in the provision of public
transportation services. These include important enhancements
to the role of private transportation providers in the planning
process, changes in funding eligibility, and funding
allocations. In the area of planning, the bill includes a
requirement that private operators engaged in public
transportation be considered in the policy and plan development
activities of metropolitan areas, which include short-range
program planning.
Specifically, private operator services are to be
considered with regard to the following planning factors:
supporting economic vitality, increasing access/mobility, modal
connectivity and integration, and preserving/enhancing the
existing system. In the area of funding eligibility, private
operators would be eligible as ``sub-recipients'' of Federal
funds under the Section 5307 (urbanized area formula), 5309
(discretionary capital grants), 5310 (elderly and disabled
formula), and 5311 (non-urbanized area formula) programs. As
sub-recipients, private sector transportation providers would
be permitted to do more than simply compete for contracts with
a public transit provider; they would be eligible to receive
grants through the designated recipient for the provision of
public transportation services that they define and deliver.
Further, every community seeking funds from the Section 5310
(elderly and disabled), and Job Access and Reverse Commute
program would be required to engage in a coordinated local
transportation/human service planning process that includes
private sector participation in the planning process. In
addition, mobility management activities, which include working
with theprivate sector to coordinate transportation services to
meet customer needs, would become an eligible expense under the Section
5307 (urbanized area formula) program.
Finally, the intercity bus portion of intermodal terminals
would be made eligible for FTA funding. This will facilitate
linkages between local public transportation and intercity bus
transportation (which is provided by private operators). In the
area of funding, bus capital funding in the amount of $75
million per year would be set aside for intermodal terminals.
In light of these changes, Section 5306 is amended to require
the Secretary to publish a formal rule on how these provisions
would be implemented.
Sec. 9. Urbanized Area Formula Grants program
Transit enhancements program is administered as a
certification rather than as a set-aside.
Private companies engaged in public transportation
are eligible subrecipients of Federal grants.
Mobility management is made an eligible expense.
The eligibility requirements for local match
within this section are streamlined to include all advertising
revenue as well as contracts with social service organizations.
Certain urbanized areas which grew to a population
of over 200,000 can use funds for operating assistance in 2006
through 2007, with the amounts progressively phased down.
Currently, Subsection 5307(h) requires streamlined
administrative procedures for track and signal improvements.
This subsection is deleted because separate treatment for track
and signal projects is no longer needed.
Currently, Subsection 5307(j) requires that grantees submit
annual reports on sales of advertising and concessions. This
subsection is deleted because it is redundant with a similar
requirement of the National Transit Database.
Subsection 5307(k) dealing with ``transit enhancement
activities'' is mainstreamed into a new subparagraph (K) in
Section 5307(d)(1). Currently, that subsection allows for a one
percent set-aside for transit enhancements and requires a
report listing the projects. Under new subparagraph (K), a
recipient with at least a population of 200,000 in its
urbanized area could instead certify that one percent of its
Section 5307 funds has been expended on transit enhancements.
Subsection 5307(a) is revised to include definitions for
``subrecipient,'' as well as ``designated recipient.'' A
subrecipient includes any entity receiving funding from the
designated recipient. This will facilitate private sector
participation in public transportation.
Subsection (b) is amended to state more explicitly the
general authority for grants under Section 5307. Eligibility is
expanded to include ``mobility management'' as defined in
Subsection 5302(a)(7a). Paragraph (4) is struck since separate
eligibility for reconstructing or rehabilitating rolling stock
is no longer needed, since these terms have been included in
the definition of capital project in Subsection 5303(a).
Currently, urbanized areas over 200,000 may not use funds
from the urbanized area formula program for operating
assistance. A number of urbanized areas' status changed
unexpectedly as a result of the 2000 census, due to changes in
the Census Bureau's definitions and procedures for defining
urbanized areas. These areas were allowed to continue to use
funds for operating assistance for 2003 by P.L. 107-232, for
2004 by the Surface Transportation Extension Act of 2003, and
for the first eight months of 2005 by the Surface
Transportation Extension Act of 2004, Part V. These provisions
are extended for the remainder of 2005 as currently enacted.
For 2006 and 2007, these provisions are phased out. Urbanized
areas covered by these provisions would be allowed to use 50
percent of their current limits on operating assistance in 2006
and 25 percent in 2007. This should provide these areas with
more than ample time to develop and implement transition plans.
The Committee strongly opposes continuing these provisions
beyond 2007 and believes the more appropriate role for the
Federal Government is in capital investment.
Currently, the Urbanized Area Formula program allows the
local match to include only those revenues from advertising and
concessions that were generated above a 1985 baseline. This
bill strikes this 1985 baseline in Section 5307(e) in an effort
to foster aggressive local financing. In addition, Subsection
5307(e) is amended to permit revenues received from contracts
with State or local social service agencies to count as
eligible to match Section 5307(e) grants. Such revenues are
already eligible as non-Federal share in the Section 5311 non-
urbanized area program. Allowing such revenues to count as non-
Federal share will provide an incentive to coordinate services
between transit agencies, a process that the Committee and the
Administration have actively worked to foster.
Section 5307(g)(4) is deleted to remove an obsolete
standard for setting interest rates on advance construction
projects. TEA-21 included a provision which required that the
interest rate be set based on the most favorable terms
available to the recipient and thus this is unnecessary.
Under current law, Section 5307(n)(1) states that 18 U.S.C.
1001, regarding false or fraudulent statements, applies only to
certificates or submissions provided pursuant to Section 5307,
``Urbanized Area Formula Grants.'' This paragraph is moved to
Section 5323, General Provisions on Assistance. Under Section
5223, 18 U.S.C. 1001 applies to any Federal public
transportation grant program.
A technical amendment is made to Subsection 5307(k)(2) to
provide a complete list of requirements with which grant
recipients must comply. In addition, a provision is added to
Subsection 5307(k) to clarify that the Hatch Act does not apply
to non-supervisory employees of grant recipients. This
provision was included in the former Section 5 of the Urban
Mass Transportation Act of 1964, as amended. However, it was
inadvertently not included in Chapter 53 when the Urban Mass
Transportation Act of 1964, as amended, was codified.
Sec. 10. Planning Programs
The existing Clean Fuels Formula Program is merged
into the Bus and Bus Facilities Program.
The Metropolitan and Statewide planning grant
programs are consolidated into a new Section 5308; procedures
and formulae for both are unchanged.
A new Planning Capacity Building ``set-aside'' is
established.
Discretionary Planning Funding is made available
for Alternatives Analysis; such studies are now funded from the
New Starts program.
The Clean Fuels Formula Grant program, established in TEA-
21, set up a separate program to foster the procurement of
alternative fuel vehicles. In each year of the authorization
period, those funds were redirected into the bus and bus
facilities program. Regardless, the purpose of thisprogram is
being fulfilled through capital grants for buses. Forty percent of
buses procured with Federal transit assistance as part of the bus and
bus facilities program use alternative fuels.
Currently, the Metropolitan Planning Program is authorized
in Sections 5303(g) and (h) and the Statewide Planning Program
is authorized in Section 5313(b). The bill brings these
provisions together into a unified Section 5308, funded as a
takedown from the formula programs. While the takedown comes
only from the formula and research program authorization, the
amount is set at 1.25 percent of the total amount in the
capital and formula programs. This is an increase from funding
under TEA-21, during which planning was authorized at an amount
equal to about 1 percent of total funding. The current split of
funding between metropolitan and statewide planning is
maintained.
Current Subsection 5303(g) is moved to Subsection 5308(a)
and is changed from ``Transportation Plans and Programs'' to
``General Authority'' for consistency with FTA's other program
subsections. Language is added for transportation plans and
programs since these are the primary products of the Federally
funded transportation planning process. Section 5308(a)(3)
explicitly authorizes eligibility for peer exchanges and
activities related to peer reviews.
Subsection 5303(h) moves to Subsection 5308(b) and is
renamed from ``Balanced and Comprehensive Planning'' to
``Purpose.'' Existing Section 5303(h)(4) is eliminated since it
is obsolete with the addition of new urbanized areas in the
2000 Decennial Census.
Section 5303(h)(2) is moved to Section 5308(c)(2), and
modified by directing States to make allocations of planning
funds to MPOs promptly and eliminating any direct role for the
Department of Transportation. FTA retains flexibility with
respect to an administrative formula for areas over 1 million
population currently added in the apportionments to States on a
per capita basis.
Section 5308(d) relocates the existing State planning and
research program from 49 U.S.C. 5313(b). The formula for
apportionments does not change and consolidates the formula
planning programs in Section 5305.
Section 5308(e) establishes ``Capacity Building'' as an
eligible activity within transportation planning. Capacity
Building promotes activities that support and strengthen the
planning processes required under 49 U.S.C. 5303-6. Through
this initiative, metropolitan planning organizations and
transportation operators can use planning funds to plan,
develop and implement innovations and enhancements that support
and strengthen the planning processes. The Secretary is
authorized to conduct research, engage in program development,
collect and disseminate information, and provide technical
assistance in connection with metropolitan and statewide
planning processes. The initiative will be carried out jointly
by FTA and FHWA.
Subsection (g)(1) allocates $5 million for Capacity
Building, and $20 million for discretionary grants for
Alternatives Analysis. At present, Alternatives Analysis is
inappropriately funded from the New Starts program. The current
practice of funding the Alternatives Analysis of New Starts
presumes that the result of the Locally Preferred Alternative
will, in fact, be a New Start. If Alternatives Analysis is a
true look at alternatives in the process of providing
transportation, the appropriate place for these funds to be
expended is within the planning program. The remainder of
planning money is split 82.72% for metropolitan planning and
17.28% to carry out statewide planning and research program.
Existing Section 5303(h)(5) is relocated to a new Section
5308(f), ``Government's Share of Costs,'' and applies to both
planning programs.
Section 5308(h) provides the period of funding availability
that is identical to current funding availability under Section
5303.
Sec. 11. Capital Investment Program
The Bus, New Starts and Fixed Guideway
Modernization programs continue in the Capital Investment
Programs; funds are split approximately 23% bus, 40% New Starts
and 37% Fixed Guideway Modernization.
Bus funds going to private non-profit
organizations or rural transit systems as subrecipients are
administered under the requirements of the Elderly and Disabled
and Rural programs, respectively. The requirements for
statewide transit providers depend on where the project is
located.
Non-fixed guideway corridor improvements are
eligible for New Starts funds for projects under $75 million.
Funding for Alternatives Analysis is made
available from the Planning Program rather than the Capital
Investment Program.
Current procedures and criteria apply to New
Starts projects over $75 million in New Starts share while
simplified procedures and criteria apply to New Starts projects
under $75 million in New Starts share.
The current exemption for projects under $25
million is eliminated.
The current three level rating system (Highly
Recommended, Recommended, Not Recommended) is replaced by a
five level system (High to Low).
The maximum New Starts share is retained at 80
percent.
A higher than requested share can be provided for
projects which keep cost and ridership estimates within 10
percent of the forecasts used as the basis for establishing the
Locally Preferred Alternative.
Grantees will be allowed to keep a portion of the
cost savings in the case where projects are completed under
budget.
Before-and-After Studies will be required in law.
A Public Private Partnership Pilot Program is
established.
The New Starts Report and Supplemental Report are
replaced by reports issued three times a year focusing on
changes to ratings and an annual report on budget
recommendations.
The General Authority section is amended to limit the
program to focus on three activities: New Starts, fixed
guideway modernization, and buses and bus facilities.
References to ``capital investment loans'' are deleted from
Section 5309 since, historically, only capital investment
grants have been awarded pursuant to this section.
Both fixed and non-fixed guideway projects which make major
improvements to transportation corridors are included in the
New Starts program for projects under $75 million, to
encourage, among other things, consideration of Bus Rapid
Transit options. The $25 million threshold is eliminated. All
projects under the program will be subject to a rating and
evaluation process. Fixed guideways will continue to be
required of projects seeking over $75 million in New Starts
funds. The Committee expects that the Federal Transit
Administration will develop an appropriate methodology for
evaluating the costs and benefits of non-fixed guideway
projects, consistent with that applied to fixed guideway
projects.
As noted earlier, the eligibility for Alternatives Analysis
is relocated to the planning grant program under Section 5308.
Alternatives Analysis is a planning function and therefore it
is not appropriate to fund these activities out of the capital
program.
Section 5309(a) is amended expressly to allow programs of
projects of bus and bus related facilities. The individual
agencies included in such a program of projects would be
treated as subrecipients. Under current law, private non-profit
agencies which receive assistance through a State's program of
projects must be treated as contractors to the State and thus
the assembly of such a program is treated as a procurement
action, subject to all of the rules normally intended to apply
to contractual relationships. This has inhibited State
flexibility and added to the administrative burden on States
interested in developing programs of projects for assistance
under Section 5309.
In addition, Section 5309(a) is amended to assure that
grants under Section 5309 to transit agencies outside urban
areas would be treated the same way as grants under Section
5311. Similarly, grants to private non-profit subrecipients
would be treated the same way as private non-profit
organizations are treated under Section 5310. Statewide transit
providers would be required to follow the requirements which
would apply under Section 5307 if the project is located in an
urbanized area and under Section 5311 if the project is located
outside urbanized areas.
Section 5309(b) includes a new definition of Alternatives
Analysis. An Alternatives Analysis will include a complete
evaluation of a range of alternatives, selection and formal
adoption by the metropolitan planning organization of a Locally
Preferred Alternative, and produce the information needed to
evaluate the Locally Preferred Alternative under this section.
Before making an award under Section 5309, the Secretary
must find that applicants (1) have complied with statutory
planning and private enterprise provisions, (2) have the legal,
financial and technical capacity necessary to carry out the
project, (3) will have satisfactory continuing control of the
project's use and capability, and (4) will maintain project
property. The amendment to Section 5309(d) permits the
Secretary to rely on a Section 5307 applicant's certification
containing the same project attributes when applying for
Section 5309 funds. It also clarifies that the term ``technical
capacity'' includes the safety and security aspects of a
transit project.
Section 5309(e) is amended to improve the evaluation of New
Starts projects. The factors, considerations, and
determinations in Section 5309(e)(2-4) are essentially those in
current law, although new factors were added to ensure that the
Secretary assess the reliability of the forecasts of costs and
ridership and land use is elevated from a ``consideration'' to
a justifying factor. Too often, as projects develop through the
New Starts process, the estimated costs increase while the
forecasted ridership decreases, reducing the cost-effectiveness
of the proposed project. In addition, language in current law
is strengthened to require the Secretary to assure that New
Starts projects are implemented only if the quality of local
bus services will not be degraded.
Section 5309(e) applies in full to projects with a proposed
New Starts share of more than $75 million. New starts projects
proposing a Federal share of under $75 million will be subject
to a streamlined rating process under a new Section 5309(f).
These streamlined procedures include a simplified list of
findings (which include cost-effectiveness, land use and
economic development impacts) and determinations. Projects will
have to be evaluated on the basis of forecasts made for project
opening. Financial plans will be limited to the period during
which the project is being constructed and financed. A
simplified Project Construction Grant Agreement is used to
reflect the major features of Full Funding Grant Agreements.
Under current law, projects with a Federal share of less
than $25 million are exempt from the New Starts rating process.
The bill eliminates this exemption, thus requiring that all
projects be rated. This will assure that all candidates for
Federal funding, no matter how small, are the subject of
appropriate analysis and evaluation. Current language which
exempts projects funded with flexible funds from Title 23 is
not continued, because it is unnecessary since Section 5309(e)
applies to projects which are candidates for discretionary
funding under the New Starts program. Because they have already
been subject to analysis and rating, projects with FFGAs
executed prior to enactment are exempt from the new
requirements.
A new Section 5309(e)(1) is added to make clear that all
New Starts projects with a Federal share of over $75 million
would be implemented under a Full Funding Grant Agreement
(FFGA), be subject to ratings under this section, and
authorized in law. A project would have to receive an overall
rating of at least ``medium'' to receive an FFGA.
The consideration under Section 5309(e)(3)(E) is expanded
slightly to include the positive effect on capacity,
utilization, or longevity of other surface transportation
facilities.
Under current law, the Secretary must evaluate and rate a
project as ``highly recommended,'' ``recommended,'' or ``not
recommended.'' In response to the Government Accountability
Office's recent suggestion that an approach be developed to
better distinguish projects, the ratings are changed to
``high,'' ``medium-high,'' ``medium,'' ``low-medium,'' or
``low.'' This enables FTA to better manage the pipeline of
projects, educate grantees, and distinguish between projects.
The requirement that projects be given priority if they are
transportation control measures in State Implementation Plans
for nonattainment areas is dropped, because air quality is
already considered in the rating of a project, and it is
therefore unnecessary.
A new Subsection 5309(e)(8) is added to require periodic
publication of the policies and procedures used in rating
projects. This will help improve the transparency and
predictability of the rating process.
The Committee is seeking to identify cost drivers for
critical, complex, and capital intensive transit New Starts
projects. Public Private Partnerships (PPP) may provide an
important way to achieve significant savings. These
partnerships with qualification-based selection and
performance-based contracting integrate risk sharing,
streamline project development, engineering, and construction,
and preserve the integrity of the NEPA process, which results
in the potential for significant schedule and cost advantages
over traditional infrastructure development. The Secretary is
directed, in Section 5309(g)(2)(e), to undertake a pilot
program in which major investment projects are to be selected
for PPPs, during the development phase of the projects, with a
goal of demonstrating project cost savings. The Secretary also
is directed to work with states and local entities to identify
and eliminate existing impediments to successful implementation
of PPP's. The Committee expects the Secretary to initiate the
pilot program as soon as practicable after enactment, in order
that the benefits of PPP's may be understood and potentially
applied to other transit New Starts projects.
A new statutory requirement for ``Before and After
Studies'' as part of Full Funding Grant Agreements is added in
Section 5309(g). Such studies are already required by the
regulation implementing Section 5309(e) and are an essential
part of improving the New Starts program. By better
understanding the actual costs and benefits of New Starts
projects, especially the early planning stages when the Locally
Preferred Alternative (LPA) is chosen, the planning process can
be improved, and future projects can be based on estimates of
costs and benefits which are moreaccurate. In addition, FTA
would be required to produce an annual report each year which would
summarize the results of these studies.
Although there is a strong demand for New Starts funding,
reduction of the maximum Federal share is not an approach taken
in this bill. The maximum Federal share for highway and transit
projects stays the same, in order to assure that there is a
level playing field between highway and transit projects at the
local level. Nonetheless, it does not prevent project sponsors
from overmatching the statutory minimum local share or FTA from
considering a sponsor's overmatch as part of the process of
evaluating the local share.
Often there are significant increases in the scope and
costs of the projects as they develop from concept to FFGA. In
such cases, the cost-effectiveness of the alternative selected
could very well be significantly inferior at the time of FFGA
than when the original LPA was selected. To provide an
incentive to local project sponsors to avoid such cost and
scope ``creep'', the Secretary is to take into account the cost
and ridership calculation of the project at the end of
Alternatives Analysis in establishing the Federal commitment
level to a project. The Secretary would be given the discretion
to reward project sponsors with a higher proportional share if
the cost and benefit analyses at FFGA are within 10% of the
original calculation. In this way, more meritorious projects
and those which have better controlled costs can be provided a
higher Federal share. This provision will protect the integrity
of the decision making process and will ensure that more
accurate data is presented as the basis for selection of the
LPA. As a result of this provision, however, no project would
be eligible to receive a total Federal share of greater than
80%.
In addition, the Secretary is given the discretion to allow
project sponsors to benefit if an FFGA project is completed
under budget. The provision in current law often prevents the
grantee from keeping funds which remain and this potentially
results in a perverse incentive to spend the remaining funds
inappropriately. The new provision would expressly allow
sponsors to retain a portion of the under-run for other
eligible public transportation purposes, upon approval by the
Secretary.
The Committee believes that it may be appropriate for the
contractors to public transit agencies to share in the cost
savings if they have contributed to such under-runs as a result
of good performance. Thus, the Committee directs the Department
of Transportation to conduct a study on the appropriateness of
applying the principles of contractor performance awards
contained in the Federal Acquisition Regulations, 48 CFR
Subpart 16.4.
Section 5309(g) is amended to allow the non-Federal share
to include funding from a variety of sources, including
contract revenues from other agencies (as is now the case for
the non-urbanized area program). This can be a powerful spur to
improve coordination of transportation services in a region, a
top priority for the Committee.
Current law allows use of up to eight percent of the
amounts available in each fiscal year for Alternatives Analysis
and Preliminary Engineering within New Starts. As amended,
Section 5309, at Subsection (m)(2) limits the use of such funds
to Preliminary Engineering, which marks the first substantive
stage of a project. As noted earlier, funding for Alternatives
Analysis would be available from the planning program, as well
as from an urbanized area's formula funds under Section 5307.
A reference to 23 U.S.C. 103(e)(4) in Section 5309 is
deleted since Subsection 103(e) was repealed by Section 1106 of
TEA-21.
Section 5309(i)(3) would continue to set aside $10,400,000
each year for Alaska and Hawaii ferry boats, the same amount as
is in TEA-21. The factors in Section 5309(i)(6) to be
considered by the Secretary in selecting bus and bus facilities
grants is expanded to include both the age and condition of the
buses, fleets, and facilities.
In lieu of establishing a new program for intermodal
facilities as proposed by the Administration, $75 million is
set aside each year from the bus discretionary program for
these facilities. Eligibility for the intercity portion of
intermodal terminals is established by the amendment to Section
5302.
The bill changes the New Starts reporting requirement to
one annual funding report and three status reports as reflected
in a new Section 5309(q). Currently, rating all projects for
the annual report requires grantees not eligible for funding to
rush their studies, frequently degrading their quality, so that
information can be produced for the report. The annual report
would describe only projects receiving funding based on
evaluations and ratings and on existing commitments and
anticipated funding levels for the next 3 years. Every four
months, a report would be released with FTA ratings of only
those projects with significant changes in their summary rating
or some other key feature, or those that recently have entered
preliminary engineering or final design. Every report would
contain a table with summary rating information for all
projects currently in the New Starts pipeline.
The requirement for an annual review by the General
Accountability Office of the New Starts rating and evaluation
process is continued. These reports have been useful to
Congress by providing an objective overview of the New Starts
rating process.
The Federal Transit Administration is required to issue a
``Contractor Performance Assessment Report'' (CPAR). This
report will analyze the consistency and accuracy of cost and
ridership estimates made by contractors to public
transportation agencies developing major capital investments.
This would provide public transportation agencies with a tool
to assist in choosing contractors with the highest success
rates in predicting cost and ridership.
Sec. 12. Formula Grants for New Freedom for Elderly Individuals and
Individuals With Disabilities
The program is expanded and renamed to include
activities which provide access to persons with disabilities,
in addition to that which is required to meet the requirements
of the Americans with Disabilities Act.
Medical access needs are given priority in the
program.
Current formulae and program structure continue as
in current law.
Matching requirements are expanded to include
funding from other Federal programs and contracts with human
service agencies.
The sliding scale match is applied in States with
large amounts of public lands.
A requirement is inserted that projects must be
drawn from a human service transportation coordination plan.
Currently, under Section 5310, the Secretary may provide
grants for the special needs of elderly individuals and
individuals with disabilities directly (1) to a State or local
Government authority; or (2) to the chief executive office of
the State for allocation to private non-profit corporations or
associations when such service is unavailable or insufficient,
or (3) to Governmental authorities approved by the State to
coordinate services for these two populations groups, if there
are no non-profit corporations readily available to provide the
service. Section 5310 is amended to authorizegrants directly to
a State, which would then be able to allocate the funds to a private
non-profit organization or a Governmental authority under the same
conditions required in current law.
Persons with disabilities are particularly in need of
service beyond that provided in response to the Americans with
Disabilities Act. Funding for Section 5310 is expanded and
explicit eligibility is provided for Governmental authorities
providing services in excess of that provided by the Americans
with Disabilties Act. This will help fulfill the goals of the
President's New Freedom Initiative, without creating a new
program. In addition, language is added to clarify that a
priority of Section 5310 program funds is the provision of
access to medical care.
Section 5310(a)(3) allows a State to use up to 15 percent
of the amounts it receives under this section to administer,
plan, and provide technical assistance. This is an increase
from the present administrative practice of allowing up to 10
percent of the amounts for these purposes, and is necessary
because of the added complexity of the program and the enhanced
requirements for coordination of services. In addition, this
additional authority makes this program consistent with the
Section 5311 program, so that both state-administered programs
essentially have similar structures.
Consistent with existing Section 5310, grants would be made
for capital public transportation projects planned, designed,
and carried out to meet the special needs of this population
and could include the acquisition of public transportation
services as a capital expense. The Federal share cannot exceed
80 percent of the net capital costs of the projects, as
determined by the Secretary. The remainder of the funds could
be provided from a variety of other sources, including
undistributed cash surpluses, or from amounts appropriated or
made available for transportation from any other Federal
department or agency other than the Department of
Transportation, except for Federal Lands Highway funds, as well
as contract revenue received from human service agencies. These
are the same sources as for the Formula Grants program for
other than urbanized areas as proposed under Section 13 of this
bill. Having identical requirements for local matching funds is
intended to provide the same incentive to coordination of human
service transportation as is now provided in the Section 5311
program.
This section is also amended to allow for a sliding scale
approach to the match requirements for capital expenses for
those states that have a large percentage of public lands, and
as a result, have a lower tax base from which to draw resources
to fund the matching requirement mandated by these programs. It
is similar in nature to a provision already in current law in
the highway program.
As is current practice, funds under Subsection (b)(1) are
apportioned to States based on a formula administered by the
Secretary. In administering this formula, the Secretary will
consider the number of elderly individuals and individuals with
disabilities in a State. Under current law, unobligated Section
5310 funds available during the fourth quarter of each fiscal
year may be transferred to Urbanized Area or Other Than
Urbanized Area Formula Grant programs in order to supplement
funds apportioned under those sections. Subsection (b)(2)
allows recipients of grants under this section to transfer
Section 5310 funds to those programs at any time provided that
the funds are used for the purposes originally authorized. This
would eliminate the artificial fourth quarter requirement since
States typically budget for such transfers in the beginning of
each fiscal year. In addition, States could make funds
available to a subrecipient in a single transaction that
included several FTA program-funding sources.
Under Subsection (d), a recipient of a grant is subject to
all Section 5307 grant requirements to the extent the Secretary
deems appropriate. Recipients would be required to certify that
the projects for which funds are requested are drawn from a
plan for human service transportation coordination. The effect
of this provision and those included in the non-urbanized
formula program and the Jobs Access and Reverse Commute Program
will be to enhance coordination between these programs and with
programs of other Departments, such as Health and Human
Services, Labor, and Education. The Committee expects that FTA
will give grantees an appropriate opportunity to develop these
plans by phasing in this requirement during FY 2006. Finally,
recipients are required to certify that allocations made to
subrecipients were distributed in a fair and equitable manner.
Subsections (e) through (i) are the same as in current law.
Subsection (e) requires states to develop annual programs of
projects. Subsection (f) allows vehicles acquired under this
section to be leased to local Governmental agencies to improve
service coordination. Subsection (g) allows vehicles acquired
under this section to be used for ``Meals on Wheels'' services
as long as the service does not interfere with use of the
vehicles for public transportation purposes. Subsection (h)
allows vehicles to be transferred to another eligible recipient
if they are no longer needed by the original recipient.
Finally, Subsection (i) states that fares do not have to be
charged on services assisted by Section 5310 funds.
Sec. 13. Formula grants for other than urbanized areas
Indian tribes become eligible direct recipients of
program funds, with a portion of funding set aside for tribes
beginning in FY 2006.
Private companies engaged in public transportation
are eligible as subrecipients.
The Rural Transit Assistance Program becomes a 2
percent takedown from the program.
Recipients must submit data on service levels,
costs, and revenues to the National Transit Database.
A new formula tier is established based on land
area to address the needs of low-density states. The remaining
80 percent of funds are to be allocated using the current
formula.
Matching funds may come from contracts with human
service agencies (as in current law) or from other Federal
programs.
The ``sliding scale match'' is applied in States
with large amounts of public lands for capital grants and
proportionally for operating assistance.
Section 5311(a) defines an eligible recipient and
subrecipient of other than urbanized area program funds. Indian
tribes are established as direct recipients. Private operators
engaged in public transportation are made eligible as
subrecipients of 5311 funds, providing for opportunities for
involvement of the private sector, as was the original intent
when the Urban Mass Transportation Act of 1964 was first
enacted. The Administration proposed this change as part of
their SAFETEA proposal with the belief that this would provide
a better opportunity for private operators to participate in
the decision-making processes regarding their role in providing
public transportation services.
Section 5311(b) allows other than urbanized area formula
grants to be used for capital transportation projects, or
operating assistance projects (as is currently allowed),
including the acquisition of transportation services, provided
the projects are contained in a State program of public
transportation service projects (including agreements with
private providers of public transportation services).
Currently, urbanized area program grant recipients must
submit data on service levels, costs, and revenues, in
accordance with requirements of the National Transit Database.
Current law is amended to require a simplified version of these
data collection requirements for the other than urbanized area
program. Given the large growth in funding for this program, it
is crucial that recipients report basic information on the
effectiveness of this program. The Committee expects that the
data collection requirements will be tailored to the smaller
size of the typical public transportation system in rural
areas, while still providing enough information to judge the
condition and performance of our Nation's network of rural
public transportation services.
Under current law, recipients of grants and contracts for
transportation research, technical assistance, training, or
related support services, such as those given under the Rural
Transportation Assistance Program (RTAP), must compete annually
for National Planning and Research funds. Section 5311(b)(3),
as redesignated, provides up to two percent of Section 5311
funds to carry out RTAP activities. This amendment better
correlates funding for RTAP with the amount of funding for
rural service overall, thereby stabilizing the program. Since
the formula funding level for rural transit increases, a
proportionate increase in the level of funding for training and
technical assistance delivered at the State level is available.
New paragraph (4) allows the Secretary to use up to 15 percent
of the two percent to sustain ongoing national project
activities such as the National Transit Resource Center,
production training modules, and occasional rural transit
research projects of national interest.
An increasing amount of funding is set aside for Indian
Tribes each fiscal year beginning in fiscal year 2006. Of the
remainder, eighty percent of the Section 5311 program amount is
apportioned to States pursuant to the same formula currently
being used and now set forth in Section 5311(c)(3), which uses
population in non-urbanized areas to allocate funds. The
remaining twenty percent is apportioned on land area in non-
urbanized areas. This new factor is added to reflect the fact
that rural public transportation services are more difficult to
provide because of the long distances between homes and basic
services and thus are more costly in states with low population
densities.
Section 5311(f) is amended to strike ``after September 30,
1993,'' since that date has passed. Section 5311(f)(2) requires
the State to consult with affected intercity bus service
providers before certifying that the State's intercity bus
service needs are being adequately met. Such consultation will
help to ensure the State is aware of any unmet intercity bus
service needs which private bus operators could fulfill.
Subsection 5311(g) retains the Federal share for any
capital project at 80 percent or less of the net costs of such
a project, as determined by the Secretary. Also retained is the
Federal share for operating assistance at 50 percent or less of
the net costs of an operating project, as determined by the
Secretary. Consistent with current law, the remainder does not
include revenues from the operation of public transportation
systems. Rather, the remainder can be provided from a variety
of other sources, including undistributed cash surpluses, or
from amounts appropriated or made available for transportation
from any other Federal department or agency other than the
Department of Transportation, except for Federal Lands Highway
funds. Current Section 5311(e)(2), which prohibits a State from
limiting the level or extent of the Government's share for
operating expenses, is moved to Section 5311(g)(2) under the
heading ``Government's Share of Costs.''
Subsection 5311(g) is also amended to allow for a sliding
scale approach to the match requirements for capital expenses
under this section for those states that have a large
percentage of public lands, and as a result, have a lower tax
base from which to draw resources. It is similar in nature to a
provision already in current law in the highway program. The
match for operating assistance is set at \5/8\ of the match for
capital projects.
Sec. 14. Research, development, demonstration, and deployment projects
The current unutilized University Research and
Fellowships programs are eliminated.
``Other transactions'' are allowed in addition to
grants and contracts.
Currently, Section 5312 does not address deployment of
emerging technologies, and inappropriately includes training.
As amended, Section 5312 authorizes public transportation
service planning, and research, development, demonstration, and
deployment projects.
The former University Research and Fellowships programs
authorized by Subsections (b) and (c) are repealed, as these
programs have not been funded for many years. The intermodal
University Research Program, which is administered by the
Research and Innovative Technology Administration essentially
has replaced the transit-only University Research program in
Subsection (b). The need for a separate fellowship program in
Subsection (c) is now addressed by the wide variety of transit
training opportunities, such as the National Transit Institute
through which many more transit managers receive training for
the amounts of a single fellowship under the program in
Subsection (c).
Throughout the Federal Government, the term ``other
transactions'' is used to provide executive branch agencies
with broad discretion to enter into project agreements under
terms that would encourage private parties to participate in
Federally-assisted projects. Since the term ``other
agreements'' in Section 5312(b)(2), as redesignated, provides
the same authority, this section is amended to replace that
term with ``other transactions,'' for consistency.
Sec. 15. Cooperative Research Grant Program
The Transit Cooperative Research Program remains
unchanged.
Amendments to Section 5313 provide the correct funding
authorization citation. Since the statewide planning program
under current Subsection (b) would be merged into the new
metropolitan and statewide planning grant program in Section
5308, Subsection (b) is stricken and the title of Section 5313
is changed to reflect the fact that only the Transit
Cooperative Research Program is authorized by this section.
Sec. 16. National research programs
Project Action is continued at current funding
levels.
A new program of Medical Transportation
Demonstration Grants is established.
A new National Technical Assistance Center for
Senior Transportation is established.
A study on how to increase the use of Alternative
Fuels in public transportation is required.
Operational demonstration contracts are allowed
under conditions set by the Secretary.
Section 5314 would be amended to delete the word
``Planning'' from the heading, since the focus of the section
is on research, and planning has been provided for elsewhere in
Chapter 53.
Amendments to Section 5314(a)(1) would provide the correct
funding authorization citation and reflect the fact that the
University Transportation Centers program in existing Section
5317 has been moved to Section 5505 of Title 49.
Subsection (a)(2) continues to provide $3,000,000 for
Project Action, which is designed to help ensure that public
transportation-related assistance, programs, research,
education, and other activities comply with the Americans with
Disabilities Act of 1990.
Under current law, operational demonstration projects
involving public transportation must comply with the Department
of Labor's transit employee protection requirements under
Section 5333(b). These new technologies are tested for short
periods of time on single vehicles rather than on entire
fleets. Moreover, these types of operational projects do not
create an employee protective risk, the purpose for which
Section 5333(b) was enacted. Therefore, Section 5314(a)(3) is
amended to relieve this compliance requirement.
Current Section 5314(a)(4)(B) requires FTA to establish an
Industry Technical Panel composed of transportation suppliers
and others involved in technology development. This provision
is deleted, as such a panel is unnecessary given FTA's
continuing working relationship with all facets of the transit
industry.
A new Subsection (a)(6) is added to establish a program of
medical transportation demonstration grants. These grants will
be focused on improving methods of transportation for persons
in need of kidney dialysis.
A new National Technical Assistance Center for Senior
Transportation would be established in a new Section 5314(c).
Similar to Project Action, the Center would undertake research,
provide technical assistance, and make demonstration grants on
methods to improve transportation for elderly individuals.
A study is required by Section 5314(d) on how to increase
the use of alternative fuels in public transportation.
Sec. 17. National Transit Institute
The National Transit Institute will be continued
at Rutgers University.
Currently, Section 5315(a) requires establishment of the
National Transit Institute (NTI) at Rutgers University. This
subsection would continue the Institute at this location for
the new authorization period. The Committee is concerned about
the effectiveness of programs at the NTI and directs the
Federal Transit Administration to exercise careful oversight
over its operation to assure that the Institute is producing
benefits commensurate with the investment being made.
Existing Section 5315(b) requires the Secretary to delegate
the NTI the authority to develop and conduct educational and
training programs pertaining to public transportation. NTI
already has sufficient authority to conduct any type of
educational or training program, and therefore, this section is
deleted.
Sec. 18. Bus testing facility
Special testing requirements for ``New Model''
buses are continued.
Technical changes are made in the requirements for the
testing of new model buses.
Sec. 19. Bicycle facilities
Currently all bicycle facilities, have a Federal share of
90 percent, unless they are funded as ``transit enhancements''
which are eligible for a Federal share of 95 percent. Because
the enhancement program is being continued as a certification
rather than a set-aside, a technical correction was needed.
Sec. 20. Suspended light rail technology pilot project
Section 5320, which authorizes a suspended light rail
system technology pilot program, is repealed because it has
proved to be impractical and has not been implemented.
Sec. 21. Crime prevention and security
As noted earlier, capital costs related to crime prevention
and security have been explicitly authorized as part of a
capital project throughout Chapter 53. Accordingly, Section
5321, which provides for separate eligibility, but which has
never been separately funded, is repealed.
Sec. 22. General provisions on assistance
Environmental and public hearing requirements are
revised to conform with the applicable cross-cutting statutes.
Special terms and conditions for technology
deployment projects will be allowed.
Revenue bond proceeds can be used as local match
for transportation projects.
Debt Service Reserve Funds are made an eligible
project activity.
Public transportation agencies can receive land
which becomes available as a result of base closures.
Small and private non-profit agencies are exempted
from pre-award and post-delivery audit requirements.
Subsection (a) is amended to include the term ``private
company engaged in public transportation'' rather than
``private mass transportation company'' to utilize more current
terminology and to comport with changes made to the term
throughout Chapter 53.
The provisions of Section 5323(b) are edited to mesh the
statutory requirements of Federal transit law more closely with
current practice under the National Environmental Policy Act
(NEPA).
FTA does not depend on the ``certificate of the applicant''
that the environmental review was properly performed. Rather,
NEPA makes consideration of a proposed project's environmental
record a direct Federal responsibility. Accordingly, FTA
participates directly in the environmental process for a
proposed project and reviews the final environmental record
before accepting it.
Methods for providing public comment have broadened
considerably since the language regarding a public hearing was
enacted in Section 5323(b). This section is amended to provide
the same consideration to comments submitted by mail or
electronic means, as the consideration given tocomments
transcribed at a hearing. In addition, non-English speaking persons or
hearing-impaired persons are provided the opportunity to comment
through special arrangements.
This section eliminates the two-step process for announcing
a hearing. Under the current process, the applicant announces
the opportunity for a hearing and then waits for a response.
This bill requires that a hearing be held whenever the project
affects significant social, economic, or environmental
interests in the community, regardless of whether one has been
requested.
A new Section 5323(e) allows grants for new technology,
including the integration of innovative techniques, subject to
the requirements of Section 5309, but only to the extent the
Secretary deems appropriate. Federal grant requirements,
particularly in the case of major capital projects, are often
difficult and burdensome when imposed on the introduction of
new technology. Revised Subsection (c) strengthens and
leverages private sector participation by permitting the
Secretary to establish appropriate terms and conditions for
projects involving the integration of new innovative or
improved products, techniques, or methods. Such discretion will
facilitate new and improved public transportation resources, as
well as benefit both the public and private sectors.
The former Section 5323(e) required the Secretary to issue
a bus passenger seat functional specification based on a
finding by State and local governments of ``local requirements
for safety, comfort, maintenance, and life-cycle costs.''
Industry has adopted an effective standard, the Secretary has
issued a specification, and if the need were to arise again,
the National Highway Traffic Safety Administration would be the
more appropriate agency to address the matter. Therefore, this
subsection is deleted.
Section 3011(a) of TEA-21 allows a recipient of an
urbanized area formula grant under Section 5307 or a major
capital investment grant under Section 5309 to use proceeds
from the issuance of revenue bonds as a local match. Since this
provision has been beneficial to transit operators, it is
codified in Section 5323(f)(1).
Section 5323(f)(2) provides transit grantees with an
additional innovative financing tool. Typically, only a small
portion of public transportation investment is financed with
municipal bonds. Currently, a recipient deposits bond proceeds
in a debt service reserve to ensure timely payment of principal
and interest on the municipal bonds supporting the transit
project. Regardless, the municipal bonds are typically rated
below ``AA'' because they are secured by variable revenue
streams and thus demand a higher rate of interest. Under
Section 5323(f)(2), the Secretary could allow a recipient to
use Section 5307 or 5309 dollars to reimburse it for deposits
made to the debt service reserve. Because Federal transit funds
are typically viewed as higher creditworthy revenues, transit
bond ratings would be strengthened and interest costs reduced.
As a result, State and local investment would increase, and
there would be improved capital planning, lower costs, and
speedier project development.
Section 5323(h)(1), which prohibits a grant or loan from
being used to pay ordinary Governmental or non-project
operating expenses, is moved to Section 5323(p).
Section 5323(h)(2), which prohibits a grant or loan from
being used to support a procurement that uses an exclusionary
or discriminatory specification, appropriately belongs in
Section 5325 and is relocated.
Subsection (h) is revised to provide for the transfer of
lands or interests in lands owned by the United States. The
Department of Defense regulations (32 CFR Parts 90 and 91)
provide for the disposition of surplus land resulting from the
Defense Base Closure and Realignment Act to be transferred free
to ``grantees'' that have Federal sponsors with Federal land
transfer statutes.
However, within the Department of Transportation, only the
Federal Highway Administration and the Federal Aviation
Administration have such authority. By amending Chapter 53 to
include a Federal land transfer statute under Section 5323(h),
FTA grantees will be eligible to receive surplus Government
land for authorized public transportation projects, under
certain terms and conditions, but at no cost, just as other
agencies would.
Reference to the Intermodal Surface Transportation
Efficiency Act of 1991 in Subsection (j)(5) is obsolete, and
the provision is amended accordingly.
Current Section 5323(l), which indicates that the planning
and programming requirements of 23 U.S.C. 135 apply to grants
made under 49 U.S.C. 5307-5311, is deleted because statewide
planning has been included in the planning requirements under
Sections 5303 and 5304. Subsection (l) is then used to provide
for the applicability of 18 U.S.C. 1001, dealing with false or
fraudulent statements, to Federal transit programs. Currently,
Section 1001 applies only to certificates or submissions
provided pursuant to Section 5307, ``Urbanized Area Public
Transportation Formula Grants.''
Section 5323(m) provides that an independent pre-award
review and a post-delivery audit must be conducted when a
grantee purchases rolling stock. These reviews must show
compliance with Buy America requirements, the motor vehicle
safety requirements, and the bid specifications. In addition to
reviewing and documenting the origin of each component and
subcomponent and the location and cost of final assembly, the
grantee must use an on-site inspector when it purchases more
than 10 vehicles. As a result, the grantee must have someone on
site at the assembly plant to review and observe the actual
manufacture of the vehicle. This is costly and burdensome on
smaller grantees that may not have the staff or sophistication
to devote to such audits.
Therefore, Section 5323(m) would be amended to eliminate
these requirements for private non-profit organizations and
grantees serving urbanized areas with fewer than one million
people. All manufacturers and suppliers would have to continue
to certify compliance with Buy America during the bidding
process, and they would remain bound by their original
certification. However, these grantees will not have to certify
twice in order for the vehicles to comply with Buy America. The
vast majority of vehicles purchased will still undergo the
audits.
Sec. 23. Special provisions for capital projects
Environmental and relocation assistance
requirements are revised to conform to applicable cross-cutting
statutes (NEPA and Uniform Relocation Assistance Act).
Protective and hardship acquisitions are allowed,
consistent with current regulations.
Advance Right of Way acquisitions are allowed
under certain conditions.
Currently, Section 5324 contains relocation program
requirements as a condition of receipt of Federal assistance.
The Secretary must make an affirmative finding that two of the
numerous conditions contained in the Uniform Relocation
Assistance and Real Property Acquisition Policies Act (``the
Act''), 42 U.S.C. 4601 et seq., have been fulfilled. All State
agencies, defined in the Act as covering entities that would be
FTA grantees, must comply with these two provisions of the
statute to be eligible for Federal transit assistance.
Therefore, in order to ensure that grantees are complying with
the applicable requirements, Section 5324(a) is amended to
reference the relevant sections of the Act directly.
Section 5324(b) continues to allow protective and hardship
acquisitions as defined in 23 CFR 771.117, but it also allows
advance acquisition where the strict requirements associated
with aprotective acquisition are not met. At present, a
protective acquisition is permitted only if the development of the
property is imminent as evidenced by concrete steps taken by a
developer to build, subdivide, or otherwise develop the land. Because
it increases the cost of the property to the public when it is finally
acquired for transportation purposes, outside market forces do not
generally respect transportation project schedules for environmental
review and unduly influence the sale and development of real property.
This provision allows for the acquisition when market forces dictate,
and thereby avoids multiple transactions on the same property and the
associated escalation in cost. A strictly limited number of such
advance acquisitions is allowed without prejudice to the consideration
of alternative locations or alternative projects, because the resale of
a few parcels if a different alternative is selected, is feasible, and
presents little or no burden to the transportation agency.
Section 5324(c) addresses FTA's current practice of
allowing the acquisition of pre-existing railroad right of way
(ROW) in advance of any specific project decisions on how the
ROW will be used. In some cases, a firm project proposal and
the associated environmental review may still be years away at
the time of the acquisition, but the commercial railroad that
owns the ROW seeks to liquidate the asset through its sale, and
its preservation as a transportation ROW can only be assured
through its acquisition. Any changes in the use of the railroad
ROW are subject to appropriate environmental review prior to
the change. The purposes of other Federal laws regulating
railroads (e.g., those governing the abandonment of rail ROW)
would not be compromised by this provision.
Section 5324(d) (formerly Section 5324(b)) meshes the
statutory requirements of Federal transit law more closely with
current FTA practice under NEPA, and 49 U.S.C. 303 (commonly
called ``Section 4(f)''), and other environmental laws. Of the
Secretaries listed in current transit law, only the Secretary
of the Interior frequently has an interest in FTA projects and
routinely consults with FTA on those projects. Reference to the
Secretaries of Agriculture, Health and Human Services, and
Housing and Urban Development are removed since these agencies
rarely have any interest in transit projects and the
requirement for routine consultation with their Departments has
not proven to be necessary or productive. FTA grant applicants
are required by NEPA regulations to identify the Federal
interests and parties affected by a proposed transit project.
It is a very rare case that a transit project does affect one
of the Departments on the list.
The Council on Environmental Quality has delegated its
routine project review responsibilities to the Environmental
Protection Agency (EPA). In addition, EPA is required by
Section 309 of the Clean Air Act to review the environmental
impact statements of every other Federal agency. Federal
transit law should be consistent with current delegations of
responsibilities and with other Federal law. The amendment
deletes Council on Environmental Quality (CEQ) and substitutes
the Administrator of EPA.
Methods for providing the public with adequate opportunity
to present views have broadened considerably since the original
language about a public hearing transcript was enacted. At
present, FTA practice is to give full consideration to every
public comment on the project, whether that comment was
transcribed at the formal public hearing, was received in
written form through the mail or by email, or, in some cases,
was transcribed from a telephone voice mail service established
for this purpose. Federal transit law should not single out the
hearing transcript for greater attention than other valid forms
of public comment on the project. Therefore, Section 5324(b) is
redesignated as Section 5324(d) and is amended accordingly.
FTA has not used the existing authority to hold its own
separate hearing on a project proposed for FTA funding. The
local transit agency planning the project and constructing,
owning, and operating the project must be directly accountable
to the public affected and served by the project. The agency
must take responsibility for the public involvement process and
must consider the public comments in deciding its course of
action. FTA should not substitute its judgment in these local
matters. The authority to hold a separate FTA hearing is
therefore unnecessary and is deleted.
Sec. 24. Contract Requirements
Current provisions regarding procurement and
contracts are consolidated in a single section.
Competition in all procurements is explicitly
established as the presumptive standard.
Brooks Act coverage in program management covers
only architectural, engineering, and design contracts;
performance and audit standards now referenced are incorporated
in Title 49.
Current requirements in FTA guidance on the need
for grantees to assure that contractors have adequate capacity
to carry out a contract are included in law.
Grantees must refer to the Contractor Performance
Assessment Report when selecting contractors to do work on
projects seeking FFGAs.
Buses acquired under this title are exempt from
State dealer requirements.
Section 5326, ``Special Procurements,'' is consolidated
with Section 5325, ``Contract Requirements,'' since the
provisions of Section 5326 fall within the scope of Section
5325.
Existing Section 5307 requires the use of competitive
procurement as defined or approved by the Secretary in carrying
out procurement under that section. Section 5325(a) is amended
to expressly require the use of competitive procurement
procedures for any procurement carried out under Chapter 53.
This amendment strengthens competition standards and stretches
procurement dollars in third party contracting.
The revised language in redesignated Section 5325(b)--
referred to as ``The Brooks Act''--clarifies that program
management is limited to architectural, engineering, and design
contracts. Also, the reference to 23 U.S.C. 112(b)(2)(C)
through (F), which deals with performance and audit standards
and indirect cost rates, is removed. Instead, Subsection (b) is
revised specifically to include these provisions.
TEA-21 allowed for turnkey system projects, also known as
design-build contracting, in Federally funded public
transportation projects, including demonstration projects.
Section 5325(d) (existing Section 5326(a)), replaces the term
``turnkey'' with the more commonly used term ``design-build.''
Also, this section is amended to delete any reference to
``demonstration projects,'' since design-build contracting has
matured beyond the demonstration phase. In addition, design-
build contracting does not necessarily result in lower project
costs or new technologies and, as a result, this concept, which
appears in existing Section 5326(a)(2), is removed.
Current provisions on multiyear rolling stock procurements
now included in Section 5326(b) are relocated to Section
5325(e). Current provisions on the acquisition of rolling stock
using a variety of procurement methods now included in Section
5325(c) are relocated to Section 5325(f).
Section 5325 is amended to provide that buses purchased
with assistance from the Federal Transit program are exempt
from any state requirement to have such buses purchased only
from in-state bus dealers.
Currently, FTA and the Comptroller General can inspect
contract records for capital projects receiving Federal transit
assistance, but only in cases of ``noncompetitive bidding.''
Investigations of the merits of competitive bids are based on
(1) whether a grantee violated what it certified to, or (2) the
protest procedures in the Government-wide Common Grant Rule.
New Subsection 5325(g), ``Examination of the Records,''
strengthens oversight by allowing FTA or the Comptroller
General to inspect all contract documents.
The ``grant prohibition'' provision, dealing with contract
requirements, was erroneously included under Section 5323,
``General Provisions On Assistance,'' and is relocated
appropriately under Section 5325(h).
A new provision is added to Section 5325(i) to strengthen
the requirements that contractors to public transportation
agencies must have adequate technical and financial capacity to
carry out a proposed contract. This elevates already existing
FTA and OMB requirements on third-party contracting to a
statutory requirement.
Grantees must refer to the Contractor Performance
Assessment Reports required under Section 5309 when selecting
contractors to do work on major capital investments.
Sec. 25. Project management oversight and review
Security is added to the issues to be included in
a project management plan.
The takedown for oversight is increased to 1
percent in all programs.
Cross-cutting analyses of oversight results is
allowed.
Given the new security concerns--and in keeping with actual
practice in the field--Section 5327(a) is revised to require
that a project management oversight (PMO) plan include ``safety
and security management.''
Section 5327(c)(1) is amended to allow a one percent
takedown for PMO activities related to the planning program
(5308) and the expanded Formula Grants program for special
needs of elderly individuals and individuals with disabilities
(5310). These programs will require comprehensive agency
oversight.
Section 5327(c) is amended to strike the reference to 23
U.S.C. 103(e)(4), which was repealed by TEA-21.
The section also provides new authority for the use of
oversight funds to conduct analyses which cut across multiple
projects. At present, oversight funds may be used only to
review each project in isolation. Cross-cutting analyses could
help identify major problems which need attention and could
help develop best-practice methods which could be gleaned from
a review of a set of similar projects.
Sec. 26. Project review
The schedules for FTA review of projects in the
New Starts process are updated to clarify the relationship to
the New Starts process and criteria; the advancement of
projects is not automatic, but rather depends on meeting the
requirements of that section.
The concept of Programs of Interrelated Projects
is not continued.
Section 3026 amends Section 5328(a), which established a
firm schedule for various FTA approvals associated with New
Starts projects and reporting to Congressional committees on
failures to meet those schedules. The schedule for FTA review
continues to be maintained to ensure that projects are not
delayed inordinately. The section is amended to tie the
schedule to the requirements of Section 5309(e). In addition,
since the decision on whether to advance a project to a Full
Funding Grant Agreement is not automatic and depends on the
relative merits of projects being considered for funding, as
well as the readiness of individual projects, Subsection (a)(4)
is repealed.
Subsection (c), which provides for a program of
interrelated projects specifically identified in law, is now
obsolete and is removed.
Sec. 27. Investigations of safety and security risk
FTA investigation authority is expanded expressly
to include security issues.
The penalty for failure to address issues is
modified.
A Memorandum of Understanding between the
Departments of Transportation and Homeland Security is
required.
Section 5329 authorizes FTA to investigate ``safety
hazards,'' but does not authorize FTA expressly to investigate
``security'' matters. The provision could be interpreted as not
permitting FTA to investigate or to assist with security
matters absent some particular ``hazard.'' Therefore, this
section is amended to promote active cooperation between FTA
and its grantees on security matters, by clarifying that FTA
may assist grantees on security matters and investigate
security concerns without notice of a specific breach of
security at a transit system.
The existing section also contains an ``all or nothing''
provision that authorizes the Secretary to withhold ``further
financial assistance'' upon a transit system's failure to
correct a safety hazard. Section 5329 allows the Secretary to
determine the amount of funding to be withheld.
Section 5329(b) required that a report on safety hazards in
the transit industry be completed by 1992. The report has been
completed and thus this provision is deleted.
A new requirement is added for a Memorandum of
Understanding between the Departments of Transportation and
Homeland Security specifying the details of how the agencies
would cooperate on setting national security standards for
public transportation, would establish funding priorities for
DHS grants to public transportation agencies, and would
coordinate with each other and public transportation agencies
on security matters.
Sec. 28. Withholding amounts for non-compliance with state safety
oversight
Safety oversight is required during the design
phase of New Starts.
States can designate a single agency to handle
oversight of systems serving more than one State.
Section 5330 is amended to change the heading to
``Withholding Amounts for Non-Compliance with State Safety
Oversight Requirements'' the better to reflect the requirements
in this section.
Amendments to Section 5330 ensure that safety is considered
well before a rail fixed-guideway system begins revenue
service, i.e., during the design phase of the project.
Section 5330 allows a single transit system operating in
more than one State to designate a single entity to oversee the
safety of a rail fixed-guideway system. Because this provision
is discretionary, a rail fixed-guideway system operating in two
or more States may be subject to more than one oversight
agency, each having different safety standards. In order to
strengthen the provision's goal of safety and reduce the burden
on grantees having to comply with differing standards, Section
5330 is revised to make such a designation mandatory.
Subsection (f) required the Secretary to issue regulations
no later than December 18, 1992. Because the regulations have
been issued, Subsection (f) is deleted.
Sec. 29. Terrorist attacks and other acts of violence against public
transportation
Controllers of public transportation are protected
by laws against violence toward transportation facilities.
The term ``mass transportation'' is changed to ``public
transportation'' throughout Chapter 53 of Title 49, U.S.C., for
the reasons set forth in Section 3001 of the bill. Section 1993
of Title 18, U.S.C., is a criminal statute prohibiting
terrorist attacks and other acts of violence against the
Nation's transit systems, most of which receive Federal public
transportation assistance under Chapter 53 of Title 49. Section
1993 of Title 18 is amended to replace the term ``mass
transportation'' with ``public transportation.''
Section 1993(a)(5) makes it a Federal crime to interfere
with anyone ``dispatching, operating, or maintaining a mass
transportation vehicle or ferry.'' The statute does not address
those who ``control'' such vehicles, and arguably excludes rail
system ``controllers'' (central command employees who control
the movement of rail cars). Although such controllers
``operate'' vehicles in some cases, and thus may fall within
the statute, the statute does not expressly cover them. The
amendment to Section 1993(a)(5) explicitly provides that
interference with a rail controller constitutes a Federal
crime.
Sec. 30. Controlled substances and alcohol misuse testing
Allows ferry boats to be covered only by Coast
Guard requirements rather than both Coast Guard and FTA.
Currently, Section 5331 authorizes the Secretary to exclude
from FTA drug and alcohol testing requirements those public
transportation providers that are covered adequately by the
testing statutes of the Federal Motor Carrier Safety
Administration (FMCSA) or the Federal Railroad Administration
(FRA). Section 5331 is amended to expand the Secretary's
authority to exclude from FTA testing requirements, those
public transportation providers that are adequately covered
under other Federal or Departmental testing statutes or
regulations, such as the U.S. Coast Guard's testing provisions
applicable to ferryboat employees.
Section 5331(f)(3) states that this section shall not
prevent the Secretary from continuing in effect, amending, or
supplementing a regulation governing drug and alcohol testing
prescribed before October 28, 1991. FTA drug and alcohol
regulations are now codified (49 CFR Part 655) and therefore
Subsection (f)(3) is unnecessary.
Sec. 31. Employee protective arrangements
The time for severance pay and benefits for
transit workers is reduced to four years to comport with
existing rail worker protections for Class III railroads.
This section does not automatically require labor
protections to be continued after a change in contractor.
Grants for purchase of like-kind equipment or
facilities do not have to be referred by the Department of
Labor prior to certification.
The Committee has substantial legislative history on the
issue of Section 5333(b) labor protection, commonly referred to
as ``Section 13(c)''--a reference to the section as contained
in the pre-codified Federal Transit Act.
Current law provides for 6 years of severance pay at full
pay and benefits in the case where public transportation
employees' jobs are lost as a result of a grant. This applies
to nearly every transit agency, as few exist in the absence of
federal support. The bill would change the length of severance
pay required under Section 5333(b) to 4 years. The precedent
for this modification comes from changes resulting from the
Interstate Commerce Commission's sunset and subsequent
replacement by the Surface Transportation Board. At that time,
the requirement for severance pay for workers at Class III
railroads (which are most analogous to transit agencies) was
reduced from 6 years to 4 years. The Committee notes that this
change does not alter requirements for severance pay for
workers covered under other laws, such as those governing the
rights of railroad workers.
On April 25, 2000, the Committee held a hearing entitled
``The Ability of the U.S. Department of Labor to Delay or to
Derail Mass Transit Projects that have been Approved and Funded
by Congress.'' The hearing highlighted numerous cases where
Section 13(c) had been an obstacle to effective management of
public transportation. Transit agency representatives from
Dallas, Texas; Las Vegas, Nevada; and Boston, Massachusetts
testified about their particular experiences with delayed
grants or interference with the transit agency's ability to
make effective choices to increase the efficiency of transit
operations and capital investments.
On July 11, 2000, the Committee held a hearing entitled
``The FTA's Approval of Extending the Amtrak Commuter Rail
Contract.'' Witnesses included Acting Administrator Nuria
Fernandez and Amtrak President George Warrington. Amtrak had a
contract to provide service to the Massachusetts Bay
Transportation Authority (MBTA) since the mid-1980s, despite
the fact that Federal Government grant rules require that
contracts using federal funds be put out for competitive bid at
least every five years. In 1998, FTA wrote a letter to the MBTA
requiring it to compete the contract or risk losing federal
funds. In response, MBTA put the contract out for bid and
received four bids ranging from $175 million to Amtrak's bid of
$291 million. Additionally, MBTA rated the proposals on the
basis of quality. Amtrak ranked worst based on measures of both
price and quality. MBTA selected the best contractor on both
factors, but when it came time to transition to the winning
contractor, the Department of Labor's reinterpretation of
Section 13(c) prevented the successful bidder from carrying out
the contract and the contract with Amtrak was extended. Section
13(c) required the new contractor to maintain the same work
force, the same rates of pay, and the same work rules, thereby
eliminating any cost savings that would have been achieved by
transition to the new contractor. The result was to render the
competitive bidding process meaningless.
The Committee believes that the current provisions
contained in Section 5333(b) are in need of significant reform
to prevent the abrogation of free-market principles and cost
escalations deleterious to the effective provision of public
transportation. Operational flexibility is a keyfoundation for
competitive contracting. Accordingly, this bill provides that 13(c)
requirements do not automatically attach to newly solicited contracts,
or require that an identical workforce or rules be maintained under new
contracts. Carrying over benefits from contractor to contractor was not
envisioned when Section 13(c) was enacted and as such, this restores
the original intent of Section 13(c).
The bill codifies the Department of Labor's decision
(commonly referred to as the ``Las Vegas'' decision), which
found that a change in contractors would not extinguish
obligations under prior Section 5333(b) arrangements. This
provision is not intended to extend, expand, or contract labor
protection collective bargaining terms and conditions
applicable to subsequent contracts.
In addition, the bill establishes in law a Special Warranty
now applied by administrative practice in the Section 5311
program for other-than-urbanized-areas and applies it in the
Job Access and Reverse Commute Program.
The Committee expects the Department of Labor to promulgate
regulations to implement the changes made by this bill.
Sec. 32. Administrative procedures
Provides FTA with explicit authority to issue
regulations.
Allows the Secretary to regulate public
transportation operations in the case of national emergencies.
Questions with respect to FTA's regulatory authority
occasionally arise (e.g., with respect to the safety and
security of transit systems and, some years ago, illegal drug
and alcohol use). Amendments to Section 5334(a) clarify that
the Secretary has the authority to issue regulations as
necessary to carry out the Federal transit provisions in
Chapter 53.
Current Section 5324(c), ``Prohibitions Against Regulating
Operations and Charges,'' is moved to Section 5334,
``Administrative Provisions,'' as a new Subsection (b). It is
appropriate to house this prohibition in the ``Administrative
Provisions'' section and make it expressly applicable chapter-
wide, rather than on capital projects only. While it has been
the practice of FTA to forego any regulation of operations or
charges with respect to any grant based on legislative history,
current law is ambiguous. Moving this provision will clarify
that FTA may not regulate operations or charges, except in
emergencies. The appropriate Federal role in public
transportation is to provide financial assistance only, and not
to regulate operations. Also, this provision is amended to
specify that the Secretary is prohibited from regulating a
recipient's routes, schedules, rates, fares, tolls, and
rentals, just as this provision had specified prior to the
recodification of the Federal Transit Act into 49 U.S.C.
Chapter 53 in 1994. In light of the September 11
terroristattacks, this provision is further amended to allow the
Secretary of Transportation, under direction by the President, to
regulate the operation of and charges for public transportation systems
for purposes of national defense or in the event of a national or
regional emergency.
Sec. 33. Reports and audits
Section 5335(b), requiring that the Comptroller General
submit ``transferability reports'' to Congress, is removed, as
the report is no longer needed on a recurring basis.
Information on the use of flexible funding under Title 23 is
readily available.
Sec. 34. Apportionments of appropriations for formula grants
For basic apportionments, the existing urbanized
area formula continues as in current law.
A Transit Intensive Cities Tier is added,
allocating $35 million per year to those areas under 200,000
population which operate more service (revenue vehicle hours)
per capita than areas 200,000 to 1 million.
A study of rural and urban incentives is required.
The formula in Section 5336 sees the addition of a new
``Transit Intensive Cities'' tier. Under current law, funds are
allocated to urbanized areas with a population of less than
200,000 only on the basis of urbanized area population and
population density. Fund allocations do not reflect the amount
of transit service provided. Thus, certain small areas which
sometimes have more transit service than areas with more than
200,000 people do not get funding sufficient to recapitalize
their transit systems. The ``Transit Intensive Cities'' tier
would allocate funds to small urbanized areas with transit
service levels (represented by revenue vehicle hours) per
capita greater than the per capita service levels in areas with
population of 200,000 to 1,000,000 on the basis of transit
service levels. Funds from this tier are available for capital
purposes only.
The provision in Section 5336(h) regarding adjustments in
apportionments from the Mass Transit Account and general funds
is deleted.
The redundant provision in Section 5336(j) which describes
the grant requirements which apply to funds allocated by
Section 5336 is deleted. These requirements are already applied
to the Section 5307 program by Section 5307(n).
The provision in Section 5336(k) which referred to
treatment of former urbanized areas in Fiscal Year 1993 is
deleted.
A provision is added to require a study of incentives which
might be added to the urbanized area and other-than-urbanized
area formula programs. The Administration proposed a program of
incentive allocations based on increases in ridership which the
Committee seriously considered. However, in light of numerous
questions about how such a program would work, the factors to
be considered, and the manner in which grants could be used,
the Committee instead calls for a study of the issues involved
in establishing such a program. The Committee believes that
there may be some merit in building incentives into the
allocation of Federal funds. The report should address the
possibility of rewarding improvements in ridership (as was
proposed by the Administration) as well as improvements in
efficiency (cost per unit of service provided), effectiveness
(service utilization per unit of service provided), and cost-
effectiveness (cost per unit of service utilization). The
Committee is particularly interested in assessments of
incentives for improvements in efficiency, which could spur
public transportation agencies to explore more use of
competition in the selection of service provider as well as
increased use of privately provided service.
Sec. 35. Fixed guideway modernization apportionments
The current formula for the fixed guideway
modernization program is retained.
The formula in Section 5337 is currently used to allocate
fixed guideway modernization funds in Section 5309 and is
retained unchanged. Section 5337(e) is removed, since that
section provided for a special rule from October 1, 1997,
through March 31, 1998.
Sec. 36. Authorizations
Funds all programs except New Starts from the Mass
Transit Account
Funds New Starts from the General Fund.
Section 5338 authorizes amounts from the General Fund, and
makes available amounts from the Mass Transit Account of the
Highway Trust Fund, to carry out Federal public transportation
programs in Fiscal Years 2005 through 2009. Funds from the Mass
Transit Account are provided as ``contract authority.''
Section 5338(a), provides funds for all programs for Fiscal
Year 2005 in accordance with the Consolidated Appropriations
Act.
Section 5338(b) Formula Grants and Research, provides funds
for Fiscal Years 2006 through 2009 from the Mass Transit
Account to carry out Sections 5305, 5307, 5308, 5309 (bus and
fixed-guideway modernization), 5310-5318, 5322, 5335 and 5505
of Title 49, and Sections 3037 and 3038 of Pub. L. 105-178. It
also provides for a takedown for grants to the Alaska Railroad
for improvements to its passenger operations under Section
5307.
Section 5338(c), Major Capital Investment Program Grants,
authorizes appropriations from the General Fund in Fiscal Years
2006 through 2009 to carry out Section 5309 (New Starts).
Section 5338(c) authorizes funds from the Trust Fund for
administrative expenses. Amounts available under Subsections
(a) and (b) remain available until expended and grants financed
from amounts derived from the Mass Transit Account or through
advance appropriations under those subsections would be
contract authority.
Throughout the life of TEA-21, planning funds to carry out
49 U.S.C. 5303-5305 and 5313(b) were authorized and made
available pursuant to 49 U.S.C. 5338(c). Grants for both
planning programs are mainstreamed into 49 U.S.C. 5308. Funding
for the planning programs are authorized as a takedown from the
Urbanized Area Public Transportation Formula Grants account.
The bill provides that 1.75 percent of the funds are
available for planning in Fiscal Years 2006 through 2009. This
percentage represents a minimal increase over previous Fiscal
Years. The amount proposed in fiscal year 2005 takes into
account that this fiscal year will be the first year of
reauthorization and is based on the Consolidated Appropriations
Act.
The bill provides funding for the National Transit Database
(NTD) authorized under Section 5335 in fiscal years 2006
through 2009. The NTD workload has increased substantially with
the advent of monthly reporting on safety and security and with
the new requirements for the phased in rural and asset
condition reporting.
Sec. 37. Apportionments based on growing and high density states
formula factors
Adds a new formula to allocate funds to States
based on their population growth and on their level of
population density. This formula is split evenly between
``Growing States'' and ``High Density'' factors.
Adds a new formula to allocate funds to Growing
States. Amounts are allocated to States based on amount of
population forecast in 2015. In each State, the amount is split
between urbanized areas and non-urbanized areas in proportion
to the population in 2015.
Adds a new formula to allocate funds based on
State population density in excess of a benchmark multiplied by
the urbanized land area.
A new Section 5340 is added to allocate funds to Growing
and High Density states. For this section, the term ``State''
is defined only to mean the 50 States.
With respect to Growing States, the current formulae in
Chapter 53 all look back to population in the most recent
decennial census and to the most recent transit service level
data in the National Transit Database. While this is helpful in
assuring that funds are allocated based on need, they focus on
existing needs, not the potential needs which exist in growing
areas. Thus, it is very difficult for areas which foresee the
need for expanded transit services to use funds allocated by
the current formulae to address those needs.
The new Section 5340 allocates funds based on the
population forecasts for fifteen years after the date of that
census. Forecasts are based on the trend between the most
recent decennial census and Census Bureau population estimates.
Funds allocated to the States are then sub-allocated to
urbanized and non-urbanized areas based on forecast population,
where available. Funds allocated to urbanized areas are
included in their Section 5307 apportionment. Funds allocated
for non-urbanized areas are included in the states' Section
5311 apportionments.
Similarly, other States are of extremely high density, and
have public transportation needs and abilities in excess of
average and the ability to service those needs more effectively
than average, and thus, the current formulae do not fully
account for these needs. For States with population densities
in excess of 370 persons per square mile, funds are allocated
based on the amount by which their population exceeds the
product of their land area and the percentage of total State
population in urbanized areas as determined by the most recent
Decennial Census.
Sec. 38. Job access and reverse commute
Continues Job Access and Reverse Commute as a
competitive discretionary program.
Tailors grant requirements to the type of
recipient.
Requires projects to be drawn from a human service
transportation coordination plan.
Expands definition of ``eligible person'' to allow
States to conform definition of eligible clients to their own
TANF definition.
Section 3037 of TEA-21 authorized the Job Access and
Reverse Commute (JARC) program to assist welfare recipients and
other low-income individuals in getting to and from jobs. The
JARC program is reauthorized by amending Section 3037 of TEA-21
to provide funding authorizations for Fiscal Years 2005 through
2009.
The JARC program continues as a national competition. The
coordination requirements are amended to conform to the changes
made in Sections 5307, 5310, and 5311. Section 3037(b)(2) is
amended to clarify that funds can be used for the provision of
service as well as the development of service.
Section 3037(b) is amended to expand the definition of
``eligible low-income individual'' to allow States the
flexibility to use JARC funds to assist the same individuals as
assisted under the State-administered Temporary Assistance to
Needy Families program (TANF). At present, the JARC program
sets up a nationwide definition at 150 percent of the poverty
line, while some States may choose to define eligibility
differently. The bill allows the continuation of current
eligibility as well as the new eligibility, tied to the TANF
program within the State. No change is made in the activities
eligible under the JARC program. Hence, all activities which
have been deemed eligible remain eligible.
Section 3037(b) is amended to expand the definition of
``eligible low-income individual'' to allow States the
flexibility to use JARC funds to assist the same individuals as
assisted under the State-administered Temporary Assistance to
Needy Families program (TANF). At present, the JARC program
sets up a nationwide definition at 150 percent of the poverty
line, while some states may choose to define eligibility
differently. The bill allows the continuation of current
eligibility as well as the new eligibility, tied to the TANF
program within the State.
Section 3037(j) is amended to change the terms and
conditions of JARC grants to match the type of recipient. Under
current law, all JARC grants are subject to the terms and
conditions of Section 5307, including those to recipients in
other than urbanized areas, or recipients who are private non-
profit organizations. This represents a significant burden to
these recipients, since the requirements are tailored to public
agencies in urbanized areas. The bill makes grants to public
transportation operators and to private companies engaged in
public transportation in urbanized areas under the same terms
and conditions as required under the urbanized area formula
program. Grants to public transportation operators and to
private companies engaged in public transportation outside
urbanized areas will be subject to the requirements of the
Section 5311 program. Grants to private non-profit
organizations will be subject to the requirements of the
Section 5310 program.
Sec. 39. Over-the-Road Bus Accessibility Program
Continues Over-the-Road Bus Accessibility Program.
The heading of Section 3038 is changed from the ``Rural
Transportation Accessibility Incentive Program'' to its more
commonly used name ``Over-the-Road Bus Accessibility Program.''
In addition, Section 3038 is amended to reflect authorization
of funds for this program in Fiscal Years 2005 through 2009.
Sec. 40. Transit in Parks
Authorizes grants for public transportation
projects in National Parks and other public lands.
This section funds, for the first time, a program to
provide funding for public transportation in National Parks and
public lands at a level of $25 million per year. The
Departments of Transportation and Interior will work
cooperatively to develop and select capital improvements.
Under this program, the Departments of Transportation and
Interior will work cooperatively to select capital projects for
funding within and in the vicinity of sites in the National
Park System, the National Wildlife Refuges, Federal
recreational areas, and other public lands, including National
Forest System lands. This program is intended to help these
areas address the problem of overcrowding that has come with
increased visitation. TEA-21 required the Department of
Transportation to conduct a study of alternative transportation
needs in the national parks and other public lands, and that
study confirmed that the parks are able and willing to develop
transit alternatives. This program will help the parks make
investments in traditional public transportation, such as
shuttle buses or trolleys, or other types of public
transportation appropriate to a park setting, such as
waterborne transportation or bicycle and pedestrian facilities.
Sec. 41. Obligation ceiling
This section establishes the obligation ceiling for each
fiscal year, equal to the total amounts authorized.
Sec. 42. Adjustments for the Surface Transportation Extension Act of
2004
This section provides that the amounts for Fiscal Year 2005
are in lieu of, and not in addition to, the amounts authorized
for the first eight months of Fiscal Year 2005 by the Surface
Transportation Extension Act of 2004. In addition, the section
provides for an adjustment to the calculations of
apportionments for the fixed-guideway modernization program,
since that formula assumes a full year of funding.
Sec. 43. Disadvantaged Business Enterprise
This section continues the Disadvantaged Business
Enterprise requirements contained in the Transportation Equity
Act for the 21st Century.
Cost Estimate
April 11, 2005.
Hon. Richard C. Shelby,
Chairman, Committee on Banking, Housing, and Urban Affairs, U.S.
Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for the Federal Public
Transportation Act of 2005.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Susanne
Mehlman.
Sincerely,
Douglas Holtz-Eakin,
Director.
Enclosure.
CONGRESSIONAL BUDGET OFFICE COST ESTIMATE
Federal Public Transportation Act of 2005
Summary: CBO estimates that implementing the bill would
cost $25.3 billion over the 2006-2010 period, assuming
appropriation action consistent with the bill. The legislation
would extend the authority for the surface transportation
programs administered by the Federal Transit Administration
(FTA). For those programs, CBO estimates that the bill would
provide about $82 billion in contract authority (the authority
to incur obligations in advance of appropriations) over the
2006-2015. The bill also would authorize the appropriation of
about $6.2 billion for those programs over the same period.
The amount of new spending on transit programs under the
bill would add to outlays expected from funding previously
provided. In total, CBO estimates that discretionary outlays
would sum to about $37.3 billion over the 2006-2010 for the
affected transit programs.
Consistent with the rules set forth in the Balanced Budget
and Emergency Deficit Control Act, CBO assumes that the
contract authority for the transit programs would continue at
the same rate provided immediately before the authority for the
programs would expire in 2009. Hence, this estimate includes an
additional $8.6 billion in contract authority in each year over
the 2010-2015 period.
This bill contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA).
It would benefit state and local governments by reauthorizing
federal funding for public transportation programs. While some
provisions in the bill would result in additional costs for
these governments, those costs would result from complying with
conditions of federal assistance.
Estimated cost to the Federal Government: The estimated
budgetary impact of the bill is summarized in the table below.
The costs of this legislation fall primarily within budget
function 400 (transportation).
----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
-----------------------------------------------------------
2005 2006 2007 2008 2009 2010
----------------------------------------------------------------------------------------------------------------
SPENDING SUBJECT TO APPROPRIATION
FTA's Spending Under Current Law:
Authorization Levela............................ 918 0 0 0 0 0
Estimated Outlays............................... 6,844 4,619 3,382 2,293 1,217 470
Proposed Changes:
Estimated Authorization Levelb.................. 0 1,387 1,465 1,601 1,744 0
Estimated Outlays............................... 0 1,231 3,764 5,666 7,359 7,280
Total Spending Under the Bill:
Estimated Authorization Levelb.................. 918 1,387 1,465 1,601 1,744 0
Estimated Outlays........................... 6,844 5,850 7,146 7,959 8,576 7,750
DIRECT SPENDING
FTA's Direct Spending Under the Current-Law
Baseline:
Estimated Budget Authorityb..................... 6,691 6,691 6,691 6,691 6,691 6,691
Estimated Outlays............................... 0 0 0 0 0 0
Proposed Changes:
Estimated Budget Authorityb..................... 0 131 518 1,186 1,892 1,892
Estimated Outlays............................... 0 0 0 0 0 0
Total Direct Spending Under the Bill:
Estimated Budget Authorityb..................... 6,691 6,822 7,209 7,877 8,583 8,583
Estimated Outlays............................... 0 0 0 0 0 0
----------------------------------------------------------------------------------------------------------------
aThis is the amount of budget authority appropriated for the transit programs for 2005; it does not include
contract authority for that year.
bUnder current law, most budget authority for the transit programs is provided as contract authority, a
mandatory form of budget authority. Outlays from those programs, however, are subject to obligation
limitations contained in appropriation acts and are therefore discretionary. The legislation would provide
contract authority for each of those programs and also would authorize the appropriation of discretionary
funds for those programs as well. For this estimate, CBO assumes that obligation limitations will continue to
control most spending from those programs.
Basis of Estimate
For this estimate, CBO assumes that the bill will be
enacted by May 31, 2005, when the current authority for most of
the surface transportation program expire and that future
appropriation actions will be consistent with the funding
levels authorized in the bill.
Contract Authority
The legislation would extend the authority for the surface
transportation programs administered by the FTA through 2009.
Under current law, most budget authority for such programs is
provided as contract authority, a mandatory form of budget
authority. Outlays from those programs, however, are subject to
obligation limitations contained in appropriation acts and are
therefore discretionary. For this estimate, CBO assumes that
obligation limitations will continue to control most spending
from those programs and that appropriation acts would include
obligation limitations equal to the contract authority levels
for those programs. For the transit programs, the bill would
provide a total of $39.1 billion of contract authority over the
2006-2010 period, or $5.6 billion more than assumed under the
CBO baseline for these programs. For the 2006-2015 period,
projected contract authority would total $82 billion or $15.1
billion more than assumed under the CBO baseline for these
programs.
Spending Subject to Appropriation
In addition to providing contract authority, this
legislation would authorize the appropriation of $6.2 billion
over the 2006-2009 period for various transit programs.
Assuming appropriation action consistent with the authorization
and obligation levels specified in the bill, CBO estimates that
implementing the bill would cost about $25.3 billion over the
2006-2010 period. The amounts of new spending under the bill
would add to outlays expected from funding previously provided.
In total, CBO estimates that discretionary outlays would sum to
about $37.3 billion over the 2006-2010 period for the affected
transit programs.
Estimated impact on state, local, and tribal governments:
This bill contains no intergovernmental mandates as defined in
UMRA. The bill would benefit state and local governments by
reauthorizing federal funding for public transportation
programs. While some provisions in the bill would result in
additional costs for these governments, those costs would
result from complying with the conditions of federal
assistance.
Included in the bill are changes to existing transportation
planning requirements imposed on states and local Metropolitan
Planning Organizations (MPOs). These requirements are
conditions of receiving federal transportation assistance.
According to MPO representatives, some of these changes would
impose additional costs on MPOs, particularly a requirement
that they include certain environmental considerations as part
of the planning process. At the same time, states and MPOs
receive funds from federal highway and transit programs to
offset planning costs, and this bill would increase the amount
of transit funds set aside for that purpose.
Estimated impact on the private sector: The bill contains
no new private-sector mandates as defined in UMRA.
Estimate prepared by: Federal Spending: Susanne Mehlman;
impact on state, local, and tribal governments: Marjorie
Miller; impact on the private sector: Jean Talarico.
Estimate approved by: Peter H. Fontaine, Deputy Assistant
Director for Budget Analysis.
Changes in Existing Law (Cordon Rule)
On March 17, 2005, the Committee unanimously approved a
motion by Senator Shelby to waive the Cordon Rule. Thus, in the
opinion of the Committee, it is necessary to dispense with the
requirements of section 12 of rule XXVI of the Standing Rules
of the Senate in order to expedite the business of the Senate.
ADDITIONAL VIEWS
The legislation reported by the Committee is vitally
important to keep America moving forward in the 21st century.
The investment authorized in this bill is critical to our
efforts to improve our citizens' mobility and strengthen our
national economy. The bill takes a responsible approach to
addressing the various types of transit needs in communities
all across the nation, and we appreciate this legislation.
While we continue to support the investment level and the
highway/transit balance reflected in the reauthorization bill
which passed the Senate last year, we recognize the need to
move forward and therefore supported the bill reported by the
Committee with the understanding that we will continue to press
for a more appropriate balance between these two programs on
the Senate floor.
While there are a number of provisions in the legislation
that modify various aspects of the transit programs, for the
most part of the bill not enact major changes to a program that
has worked well. For example, while the bill enhances the role
of private-sector transit providers in several ways, it was not
intended to change the long-standing congressional policy that
decisions involving the choice between public and private
transit operators should be left to local authorities who are
better equipped to make local transportation decisions, and the
federal government should remain neutral with respect to such
local decision-making.
The bill makes several modifications to section 5333(b),
known as section 13(c), the transit employee labor protections.
Section 13(c) has been a part of every transit bill since 1964,
providing important collective bargaining and job right
protections. It has served to unify a broad coalition of
transit industry and employee representatives who have worked
together to expand the Federal transit program to what it is
today: an unequivocal success. We do not agree with the
characterization in the Section-by-Section of the testimony
given in the Committee's hearings, nor do we believe that the
description of the events in Boston accurately reflects the
circumstances of that case. In fact, the issue in Boston
stemmed from the Massachusetts Bay Transportation Authority's
use of a flawed bidding process, which led to the selection of
an unqualified contractor. Contrary to critic's allegations,
the U.S. Government Accountability Office has found that
Section 13(c) does not delay processing time for grants, nor
does it inhibit transit agencies from contracting out their
services. Given the substantial benefits to Section 13(c) to
the nation's transit systems, we do not believe that any
modifications to Section 13(c) were necessary.
However, given that modifications were made, we believe it
is important that their scope be properly understood. One of
the modifications addresses employee job guarantees when one
private contractor replaces another private contractor through
competitive bidding. Legislative history shows that Congress
intended Section 13(c) to apply to grants in all such cases,
with specific benefits dependent upon the facts of each case;
this issue was addressed in the Department of Labor's ``Las
Vegas decision,'' dated September 21, 1994, as amplified by
letter dated November 7, 1994. The bill includes language to
ensure that the Department of Labor's decisions involving so-
called ``contractor to contractor rights'' are governed by the
standards set forth in the Las Vegas rulings, without otherwise
affecting existing protective arrangements; this affirmation of
existing DOL policy should not serve as a basis for objections
under 29 CFR 215.3(d).
In addition, the amendment to section 5333(b)3), which
reduces the protective period from a maximum of 6 years to a
period not to exceed 4 years, applies exclusively to the
duration of a dismissed or displaced employee allowance, and
does not otherwise affect the protections afforded employees
under section 5333(b). Moreover, the protections afforded to
workers on Class III Railroads have never before been connected
to transit labor protections, and should not be viewed as a
precedent for any change to Section 13(c).
We believe that the Committee's hearing record provides
ample evidence that Section 13(c) has contributed to the
development of a well-trained, professional transit workforce
which allows the transit industry to operate effectively even
as the range of transit services continues to expand and
technology continues to improve.