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Daily Rules, Proposed Rules, and Notices of the Federal Government

DEPARTMENT OF TRANSPORTATION

Federal Transit Administration

Notice of FTA Transit Program Changes, Authorized Funding Levels and Implementation of the Moving Ahead for Progress in the 21st Century Act (MAP-21) and FTA Fiscal Year 2013 Apportionments, Allocations, Program Information and Interim Guidance

AGENCY: Federal Transit Administration (FTA), DOT.
ACTION: Notice.
SUMMARY: This notice announces changes in the Federal Transit Administration (FTA) programs in accordance with the Moving Ahead for Progress in the 21st Century Act (MAP-21), which authorizes surface transportation programs of the Department of Transportation for Federal fiscal years (FY) 2013 and 2014. This notice provides preliminary implementation instructions and guidance for the new and revised programs in FY 2013, announces the partial apportionment for programs authorized and funded with FY 2013 contract authority, and describes future plans for notice and comment for several programs. The notice also includes locations of tables of unobligated (or carryover) funds allocated under the discretionary programs from prior years carried out in accordance with the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy For Users (SAFETEA-LU) or prior authorization acts.
FOR FURTHER INFORMATION CONTACT: An FTA headquarters contact for each major program area is included in the discussion of that program in the text of the notice.

FTA recommends that stakeholders subscribe on FTA's Web site (www.fta.dot.gov) to receive email notifications when new information is available. SUPPLEMENTARY INFORMATION:

Table Of Contents I. Overview II. FY 2013 Funding for FTA Programs A. MAP-21 Authorization and FY 2013 Continuing Resolution (CR) Appropriations B. Oversight Takedown C. Previously Authorized Funding III. MAP-21 and FY 2013 Appropriations: Highlights of Changes A. Focus Areas 1. Safety Authority 2. State of Good Repair and Asset Management 3. Streamlining and Program Efficiency i. Fixed Guideway Capital Investment Program ii. Pilot Program for Expedited Project Delivery 4. Formula Funding and MAP-21 Discretionary Programs i. Transit-Oriented Development Planning Pilot Program ii. Passenger Ferry Program iii. Tribal Discretionary Program iv. Innovative Workforce Development Program v. Low or No Emission Vehicle Deployment 5. Impacts of the 2010 Census B. Definitional Changes and New Definitions 1. Associated Transit Improvement 2. Bus Rapid Transit System 3. Commuter Highway Vehicle or Vanpool Vehicle 4. Disability 5. Fixed Guideway 6. Job Access and Reverse Commute Project 7. Low-Income Individual 8. Private Provider of Public Transportation by Vanpool 9. Public Transportation 10. Regional Transportation Planning Organization 11. Senior C. Repealed Programs in FTA's Authorization 1. Clean Fuels Grant Program (49 U.S.C. 5308) 2. Fixed Guideway Modernization (49 U.S.C. 5309) 3. Bus and Bus Facilities (49 U.S.C. 5309) 4. Job Access and Reverse Commute Program (49 U.S.C. 5316) 5. New Freedom Program (49 U.S.C. 5317) 6. Paul S. Sarbanes Transit in Parks Program (49 U.S.C. 5320) 7. Alternatives Analysis Program (49 U.S.C. 5339) 8. Over-the-Road Bus Accessibility Program (Section 3038, Pub. L. 105-85) D. Cross-Cutting Programmatic Requirements and Changes 1. Metropolitan and Statewide Planning 2. Environmental Review Process 3. Agency Safety Plans 4. Transit Asset Management Provisions (and Asset Inventory and Condition Reporting) 5. Costs Incurred by Providers of Public Transportation by Vanpool 6. Revenue Bonds as Local Match 7. Debt Service Reserve 8. Government's Share of Cost of Vehicles, Vehicle-Equipment, and Facilities for ADA and Clean Air Act Compliance 9. Private Sector Participation 10. Bus Testing 11. Buy America 12. Corridor Preservation 13. Rail Car Procurements 14. Veterans Preference/Employment 15. Alcohol and Controlled Substance Testing E. Title 23 (Federal-Aid Highways Program) Funds Eligible for Transit Purposes 1. Surface Transportation Program (23 U.S.C. 133) (STP) and Transportation Alternatives Program (23 U.S.C. 101) (TAP) 2. Congestion Mitigation and Air Quality Improvement Program (23 U.S.C. 149) (CMAQ) 3. National Highway Performance Program (23 U.S.C. 119) (NHPP) 4. Transferring Title 23 funds from FHWA to FTA 5. Matching Share for FHWA Transfers 6. Title 49/Chapter 53 Funds Eligible for Highway Purposes IV. Program-Specific Information A. Metropolitan Planning Program (49 U.S.C. 5305(d)) B. State Planning and Research Program (49 U.S.C. 5305(e)) C. Urbanized Area Formula Program (49 U.S.C. 5307) D. Fixed Guideway Capital Investment Program (49 U.S.C. 5309)—New and Small Starts and Core Capacity E. Enhanced Mobility of Seniors and Individuals with Disabilities Program (49 U.S.C. 5310) F. Rural Area Formula Program (49 U.S.C. 5311) G. Rural Transportation Assistance Program (49 U.S.C. 5311(b)(2)) H. Appalachian Development Public Transportation Assistance Program (49 U.S.C. 5311(c)(2) I. Formula Grants for Public Transportation on Indian Reservations Program (49 U.S.C. 5311(j)) J. Research, Development, Demonstration, and Deployment Projects (49 U.S.C. 5312) K. Transit Cooperative Research Program (49 U.S.C. 5313) L. Technical Assistance and Standards Development (49 U.S.C. 5314) M. Human Resources and Training Programs (49 U.S.C. 5322) N. Public Transportation Emergency Relief Program (49 U.S.C. 5324) O. Public Transportation Safety Program (49 U.S.C. 5329) P. State of Good Repair Program (49 U.S.C. 5337) Q. Bus and Bus Facilities Formula Grants (49 U.S.C. 5339) R. Growing States and High Density States Formula Factors (49 U.S.C. 5340) S. Washington Metropolitan Area Transit Authority Grants V. FTA Policy and Procedures for FY 2013 Grants A. Automatic Pre-Award Authority To Incur Project Costs B. Letter of No Prejudice (LONP) Policy C. FY 2013 Annual List of Certifications and Assurances D. Civil Rights E. Consolidated Planning Grants F. Grant Application Procedures G. Grant Management I. Overview

This document contains important information and interim guidance about new FTA programs and changes to existing FTA programs authorized by the Moving Ahead for Progress in the 21st Century Act (MAP-21) (Pub. L. 112-141), signed by President Obama on July 6, 2012, and effective on October 1, 2012.

In addition, this document provides apportionments for FTA formula programs in amounts at approximately one half of the funding levels available in FY 2012 pursuant to the Continuing Appropriations Resolution, 2013 (CR) (Pub. L. 112-175). It also contains information on how FTA plans to administer its transit programs in fiscal year (FY) 2013 and how funds appropriated and allocated prior to FY 2013 will be treated.

This notice highlights important changes to FTA programs, including new safety authority, new asset management requirements, streamlining of the New and Small Starts Program, and the impact of the 2010 Census on apportionments for FY 2013. It describes definitional changes and cross-cutting requirements. It identifies repealed programs and provides specific information about FTA's programs as authorized under MAP-21.

For each FTA program included, FTA has provided information on the MAP-21 authorized funding levels for FYs 2013 and 2014, funds available under the CR, the basis for apportionment or allocation of funds, requirements specific to the program, period of availability of funds, and other program information. A separate section provides information on pre-award authority and other requirements and guidance applicable to FTA programs and grant administration. Finally, the notice includes references to tables on FTA's Web site that show amounts apportioned under the CR, and approximately $1.9 billion in unobligated or carryover funding available in FY 2013 from prior years under certain discretionary programs carried out in accordance with SAFETEA-LU or other authorization acts.

Information in this document includes references to the existing FTA program guidance circulars. While some information in the circulars has been superseded by new provisions in MAP-21, the circulars remain a resource for program guidance in most areas. FTA intends to revise the circulars, as appropriate, with an opportunity for public comment.

To supplement the guidance provided in this document FTA is preparing answers to frequently asked questions (FAQs) on MAP-21 changes and impacts received from its grantees, stakeholders, and other interested parties. These FAQs will be posted on the FTA's Web site as they become available.

II. FY 2013 Funding for FTA Programs A. MAP-21 Authorization and FY 2013 Continuing Resolution (CR) Appropriations

MAP-21 is the new two-year surface transportation authority that provides FTA an authorization level of $10.6 billion in FY 2013 and $10.7 billion in FY 2014. MAP-21 consolidates certain transit programs to improve their efficiency and provides significant funding increases specifically for improving the state of good repair of the nation's transit systems. The law grants FTA authority to strengthen the safety of public transportation systems throughout the United States. It also streamlines the New Start process to expedite project delivery and provides for core capacity project eligibility. MAP-21 took effect on October 1, 2012.

The CR makes continuing appropriations for FY 2013 through March 27, 2013 at approximately one half of the FY 2012 funding levels. The CR specifies that appropriations are provided for continuing projects or activities for which funding was available in that fiscal year, except as provided in section 154 of the CR. In section 154 of the CR, Congress updated the appropriations language for FTA's formula programs providing an obligation limitation and liquidating authority to reflect changes to FTA's formula programs authorized in MAP-21. Section 154 of the CR allows FTA to administer FY 2013 funds for formula grant programs according to the terms and conditions established under MAP-21. Current funding availability for each program is identified in section IV of this notice and in Table 1 located on FTA's FY 2013 Apportionment Web page. Funding under the CR is not available for programs that were repealed by MAP-21 or for the new Transit Oriented Development (TOD) discretionary program, which was authorized by MAP-21 but not identified in section 154 of the CR.

B. Oversight Takedown

MAP-21 modifies section 5338(i)1 to provide for the following oversight takedowns of FTA programs: 0.5 percent of Metropolitan and Statewide Planning funds, 0.75 percent of Urbanized Area Formula funds, 1 percent of Fixed Guideway Capital Investment funds, 0.5 percent of Formula Grants for the Enhanced Mobility of Seniors and Individuals with Disabilities, 0.5 percent of Formula Grants for Rural Areas, 0.75 percent of High Intensity Fixed Guideway State of Good Repair Formula funds, and 1 percent of Capital and Preventive Maintenance Projects for Washington Metropolitan Area Transit Authority funds. The funds are used to provide necessary oversight activities, such as oversight of the construction of any major capital project receiving Federal transit assistance; to conduct State Safety Oversight, drug and alcohol, civil rights, procurement systems, management, planning certification, and financial reviews and audits, as well as evaluations and analyses of grantee-specific problems and issues; and to provide technical assistance to correct deficiencies identified in compliance reviews and audits.

1All references to “section” herein refer to sections of Chapter 53 of Title 49 of the United States Code, unless otherwise specifically stated.

C. Previously Authorized Funding

FYs 2005 through 2012 funds that remain unobligated and for which the program has been repealed or its activities consolidated with other programs under Chapter 53, will continue to be subject to the program and eligibility requirements that existed prior to the enactment of MAP-21 and to new cross-cutting requirements found in section III.D. of this notice. These programs are as follows:

• Section 5307 Urbanized Area Formula Grant Funds • Section 5309(b)(2) Fixed Guideway Modernization Formula Program • Section 5309(b)(3) Bus, Bus-Related Equipment and Bus Facilities Discretionary Grants • Section 5309(m)(6)(B) Alaska-Hawaii Ferryboats • Section 5309(m)(6)(C) Denali Commission • Section 5309(m)(7)(A) Bus and Bus Facility Grants • Section 5309(m)(7)(B) Fuel Cell Program • Section 5309(m)(7)(C) Projects Not In Urbanized Areas • Section 5309(m)(7)(D) Intermodal Terminals • Section 5310 Formula Grants for Special Needs of Elderly Individuals and Individuals with Disabilities • Section 5311 Formula Grants for Other Than Urbanized Areas • Section 5312 Research, Development, Demonstration, and Deployment Projects • Section 5314 National Research Programs • Section 5316 Job Access and Reverse Commute Formula Grants • Section 5317 New Freedom Program • Section 5320 Paul S. Sarbanes Transit in the Parks Program • Section 5339 Alternatives Analysis Program • Section 3038 of TEA-21, as amended by SAFETEA-LU, Over-the-Road Bus Program

For programs that are continued under MAP-21, the provisions of MAP-21 now apply to all unobligated funds from FY 2012 and prior, as well as to FY 2013 funds. These programs are:

• Section 5305 Planning Programs • Section 5309 Fixed Guideway Capital Investment Grants (formerly Capital Investment Program)

All references in this notice to “section” refer to Chapter 53 of Title 49 of the U.S. Code, unless otherwise specified.

III. MAP-21 and FY 2013 Appropriations: Highlights of Changes

MAP-21 furthers several important goals of the Department of Transportation, including safety, state of good repair, performance, and program efficiency. MAP-21 provides FTA significant new authority to strengthen the safety of public transportation systems throughout the United States. The Act also puts new emphasis on restoring and replacing the Nation's aging public transportation infrastructure by establishing a new State of Good Repair formula program and new asset management requirements. In addition, it aligns Federal funding with key goals and tracks progress towards these goals. Finally, MAP-21 improves the efficiency of administering grant programs by consolidating several programs and streamlining the fixed guideway capital investment grant program.

A. Focus Areas 1. Safety Authority

MAP-21 provides FTA significant new authority to strengthen the safety of public transportation systems throughout the United States by granting FTA the authority to establish and enforce a new comprehensive framework to oversee the safety of public transportation. Under MAP-21, FTA has enforcement authority to issue directives; require more frequent oversight of transit systems; impose more frequent reporting requirements; and require that formula grant funds be spent to correct safety deficiencies before funds are spent on other projects. FTA will implement the new law in consultation with the transit community and the U.S. Department of Transportation's (DOT) Transit Rail Advisory Committee for Safety (TRACS), the latter of which has been working since September of 2010 to help guide this effort. Following the promulgation of a rule, recipients of FTA funding will be required to have a public transportation agency safety plan in place in order to obligate any grant funds available under Chapter 53. Additional information on this new authority and the requirements under section 5329 can be found in section IV.O. of this notice.

2. State of Good Repair and Asset Management

MAP-21 places greater emphasis on restoring and replacing aging transportation infrastructure by establishing new asset management requirements as well as a new State of Good Repair formula program.

Section 5326 as amended by MAP-21, requires FTA to define the term “state of good repair” and create objective standards for measuring the condition of capital assets, including equipment, rolling stock, infrastructure, and facilities. Subsequent to FTA defining this term through a rulemaking, all FTA recipients will be required to set performance targets based on that definition, and report on progress towards meeting those targets. These measures and targets must be incorporated into metropolitan and statewide transportation plans and transportation improvement programs (TIPs). Also subsequent to a final rule defining state of good repair, all FTA recipients and their subrecipients will be required to develop transit asset management plans. Recipients of FTA formula funding also will be required to report asset inventory and condition information to FTA's National Transit Database (NTD). FTA will support this effort through technical assistance, including asset management decision support tools that allow recipients to estimate their capital investment needs over time and assist with asset investment prioritization.

MAP-21 also establishes a new grant program to maintain public transportation systems in a state of good repair. This program, set forth in section 5337, replaces the fixed guideway modernization program (formerly authorized in section 5309). Funding under this program is limited to fixed guideway systems (including rail, bus rapid transit, and passenger ferries) and high intensity bus (buses operating in high occupancy vehicle (HOV) lanes.) Please see section IV.B. of this notice for more information about this new program.

3. Streamlining and Program Efficiency i. Fixed Guideway Capital Investment Grants Program (49 U.S.C 5309)—(New and Small Starts)

MAP-21 modified the Capital Investment Program by expanding the eligibility to Core Capacity Improvement projects and streamlining the process. Similar to SAFETEA-LU, New Starts projects are defined as projects with a total capital cost of $250 million or greater or that are seeking $75 million or more in section 5309 funding. Eligible projects are new fixed-guideway systems, such as rapid rail (heavy rail), commuter rail, light rail, hybrid rail, trolleybus (using overhead catenary), cable car, passenger ferries, and bus rapid transit, or an extension of any of these systems. Also similar to SAFETEA-LU, Small Starts projects are defined as projects with a total capital cost less than $250 million and that are seeking less than $75 million in section 5309 funding. Eligible purposes for the Small Starts program are those mentioned for the New Starts program, as well as corridor-based bus systems that do not operate on a separated fixed guideway but include features that emulate the services provided by rail fixed guideway including defined stations, traffic signal priority for public transit vehicles, and short headway bi-directional services for a substantial part of weekdays and weekend days. MAP-21 also makes Core Capacity Improvement projects eligible for section 5309 funding. These are substantial, corridor-based investments in existing fixed guideway systems that are at capacity today or will be in five years. A Core Capacity Improvement project must increase the capacity of the existing fixed guideway system in the corridor by at least 10 percent.

MAP-21 reduces the number of steps in the process for projects pursuing capital investment program funding. For New Starts and Core Capacity Improvement projects, the steps in the process now consist of project development, engineering, and construction. For Small Starts projects the steps in the process consist ofproject development and construction. Alternatives Analysis no longer is required. FTA must evaluate and rate projects seeking section 5309 funding according to statutorily defined criteria at various steps in the process. FTA will implement changes under MAP-21 to improve the efficiency of the New and Small Starts process and implement the new Core Capacity Improvement process through rule-making and future policy guidance, which will be developed through a notice and comment process.

ii. Pilot Program for Expedited Project Delivery

MAP-21 requires FTA to develop a pilot program for expedited project delivery. Eligible projects will be new fixed guideway capital projects or core capacity improvement projects as defined under section 5309 that have not yet received a full funding grant agreement. Three projects will be selected for the pilot program, and must demonstrate innovative project development and delivery methods or innovative financing arrangements that can expedite project delivery. At least one of the three projects selected must be an eligible project requesting more than $100 million in section 5309 funding and another must be an eligible project requesting less than $100 million in section 5309 funding. Applicants to this program also must certify that their existing public transportation system is in a state of good repair. FTA will publish guidance in a futureFederal Registernotice describing the process for project sponsors to apply to FTA for consideration as a pilot project. The program itself includes no additional funding.

4. Formula Funding and MAP-21 Discretionary Programs

Under MAP-21, several of FTA's programs were repealed, consolidated, or changed from a discretionary program to a formula-based program. The Bus and Bus Facilities capital program and most of the Tribal Transit funding now are provided by formulas specified by Congress. The shift to more formula programs provides steady and more predictable funding for transit investments.

MAP-21, however, does authorize several discretionary grant programs. FTA is in the process of developing the criteria and program guidance for the following discretionary programs, which will be published in Notices of Funding Availability (NOFA). These programs include:

i. Transit-Oriented Development Planning Pilot Program

MAP-21 authorizes $10 million per year in FYs 2013 and 2014 for a new discretionary pilot program for transit-oriented development (TOD) planning grants. Eligible activities include comprehensive planning in corridors with new rail, bus rapid transit, or core capacity improvement projects. The comprehensive plans should seek to enhance economic development, ridership, and other goals; facilitate multimodal connectivity and accessibility; increase access to transit hubs for pedestrian and bicycle traffic; enable mixed-use development; identify infrastructure needs associated with the project; and include private sector participation. Grant funds are not currently available under the CR. For more information or questions on this program, please contactBeth Day at 202-366-5159 or Elizabeth.day@dot.gov.

ii. Passenger Ferry Program

In FYs 2013 and 2014, $30 million per year is set aside from the urbanized area formula program to support passenger ferry projects. Funding will be awarded on a competitive basis. FTA will publish more details on program purpose, eligible applicants and activities, and cost sharing or matching in a subsequent NOFA. For more information or questions on this program, please contact Vanessa Williams at (202) 366-4818 orvanessa.williams@dot.gov.

iii. Tribal Transit Discretionary Program

The Tribal Transit program continues to be a set-aside from the Rural Areas Formula program but now consists of a $25 million formula program and a $5 million discretionary grant program. The formula program is described in section IV of this notice. With the creation of a formula program specifically for tribal transit, FTA intends to evaluate, in consultation with the tribes, how the discretionary program can be used to augment the formula funding or “fill gaps.” FTA will develop the terms and conditions for the Tribal Transit program in consultation with tribal representatives and other interested stakeholders. More information regarding the consultation process will be made available in the upcoming FY 2012 Notice of Awards in theFederal Registerfor the FY 2012 Tribal Transit discretionary program. For more information or questions on this program, please contact Elan Flippin at (202) 366-2053 orelan.flippin@dot.gov.

iv. Innovative Workforce Development Program

Along with other Human Resources and Training authorized in section 5322, MAP-21 authorizes an Innovative Public Transportation Workforce Development Competition (section 5322(b)). This competitive grant program will assist in the development of new and innovative workforce development activities in the transit industry. Funding for this and other human resource and training activities is authorized at $5 million annually.

No funding is available for this program under the CR. As such, a NOFA will be developed subject to further appropriations with more details on program purpose, eligible applicants and activities, and cost sharing or matching once appropriations are provided. For more information or questions on this program, please contact Betty Jackson at (202) 366-1730 orbetty.jackson@dot.gov.

v. Low or No Emission Vehicle Deployment Program

MAP-21 restructures the National Research Program and authorizes a new competitive grant program within this program for Low or No Emissions Vehicle Deployment (section 5312(d)(5)). The Low or No Emission Vehicle Deployment Program authorizes funding for a competitive grant program for nonattainment or maintenance areas for capital projects for low or no emission vehicles, facilities, and related equipment. Within the amount appropriated for this program, at least 65 percent must be spent for acquiring or leasing low or no emissions buses and 10 percent for low or no emissions bus facilities. No funding is available for this program under the CR. As such, a NOFA will be developed with additional details on program purpose, eligible applicants and activities, and cost sharing or matching once appropriations are provided. For more information, please contact Walter Kulyk at (202) 366-4995 orwalter.kulyk@dot.gov.

5. Impacts of the 2010 Census for FTA's Fiscal Year 2013 Apportionments

In FY 2013, FTA is incorporating the results of the 2010 Census into its formula apportionments, as required by law, and grant administration procedures for the first time. (Although FTA published two supplemental apportionments for FY 2012 after the 2010 Census Urbanized Areas (UZAs) were released, those apportionments continued to rely on the 2000 Census data).

On March 27, 2012, the Bureau of the Census released a list of UZAs based on the results of the 2010 Decennial Census. The Census data shows that the number of UZAs increased from 465 in 2000 to 497 in 2010, and the total population residing in UZAs increased from 195 to 223 million, an increase of approximately 12 percent.

The 2010 Census resulted in some UZAs crossing statutorily-mandated population thresholds that may change the amount of formula funds that those areas can receive and may also change the eligible uses of these funds. Five more UZAs now have populations of over 1 million people, one UZA lost population such that its population is now under 1 million, twenty-seven additional UZAs now have populations over 200,000 but below 1 million, thirty-six areas became newly qualified UZAs with populations of between 50,000 and 199,999, and four UZAs experienced population losses and are now areas under 50,000 in population and are no longer considered to be UZAs.

In addition, the boundaries of many UZAs have shifted and resulted in former urban clusters (i.e., areas with populations under 50,000) and former non-urbanized areas to be now located within the boundaries of a UZA.

FTA published on its Web site additional information on 2010 Census UZAs, including a fact sheet, a comparison of the 2000 and 2010 Census UZAs and their population, and a matrix of how 2010 Census changes will affect the eligible activities of and formula apportionments made to FTA grant recipients. A Program-by-Program analysis of the impacts of the Census data on FTA's formula programs also is posted on FTA's Web site. The Census Bureau has published reference maps of the 2010 urbanized areas atftp://ftp2.census.gov/geo/maps/dc10map/UAUC_RefMap/ua/.

B. Definitional Changes and New Definitions

Section 20004 of MAP-21 modified section 5302 to provide new definitions and to modify existing definitions that clarify eligibility and requirements within FTA's programs. Unless otherwise stated, these definitions apply across all FTA programs. Several important definitional changes include:

1. Associated Transit Improvement

The term “transit enhancements” was changed to “associated transit improvements.” An associated transit improvement is a project “designed to enhance public transportation service or use and that [is] physically or functionally related to transit facilities.” Eligible associated transit improvements include historic preservation, rehabilitation, and operation of historic public transportation buildings, structures, and facilities (including historic bus and railroad facilities) intended for use in public transportation service; bus shelters; landscaping and streetscaping, including benches, trash receptacles, and street lights; pedestrian access and walkways; bicycle access, including bicycle storage facilities and installing equipment for transporting bicycles on public transportation vehicles; signage; or enhanced access for persons with disabilities to public transportation. Congress struck “public art” and “transit connections to parks within the recipient's transit service area” from the list of eligible projects. While Federal transit funds are no longer available to support public art in transit facilities, art can be incorporated into facility design, landscaping, and historic preservation, for example through the use of floor or wall tiles that contain artistic designs or patterns, use of color, use of materials, lighting, and the overall design of a facility. In addition, eligible capital projects include incidental expenses related to acquisition or construction, including design costs. Therefore, the incidental costs of incorporating art into facilities and including an artist on a design team continue to be eligible expenses.

2. Bus Rapid Transit (BRT) System

The term “bus rapid transit system” is now defined by statute, and this definition impacts how BRT systems qualify as fixed-guideway service for the Urbanized Area Formula Program and State of Good Repair Formula Program apportionments. The statutory definition is narrower than the definition used previously for purposes of the NTD. FTA used NTD data and other sources to determine which BRT systems qualify under the new statutory definition. FTA will issue a futureFederal RegisterNotice to update the reporting guidance in the NTD Reporting Manual. As defined by section 5302, a “bus rapid transit system” means a bus system in which the majority of each line operates in a separated, dedicated, right-of-way for transit during peak periods and includes features that emulate the services provided by rail transit, including—defined stations; traffic signal priority; short headways for a substantial part of weekdays and weekend days; and any other features the Secretary may determine are necessary to produce high-quality transit services that emulate the services provided by rail transit. This definition means that a BRT system may include a mixture of both exclusive guideway and non-dedicated guideway with traffic signal priority, so long as the exclusive guideway (during peak periods) constitutes a “majority of the line” and so long as the other features emulating rail transit are present. All BRT systems meeting this definition are classified as fixed-guideway (see below) for purposes of the Urbanized Area Formula Program and State of Good Repair Formula Program apportionments. Readers should be careful not to confuse the definition of “bus rapid transit system” under section 5302 with the different types of bus rapid transit projects defined by section 5309, the statute that authorizes the New Starts and Small Starts programs. Under section 5309 there are definitions for both a “fixed guideway bus rapid transit project” and a “corridor-based bus rapid transit project” which set limitations for the types of BRT projects that may be eligible to compete for discretionary New Starts or Small Starts funds.

3. Commuter Highway Vehicle or Vanpool Vehicle

This term is a new definition in Chapter 53 and is found in section 5323(i). A Commuter Highway Vehicle or Vanpool Vehicle is defined as any vehicle seating at least 6 adults (not including the driver); and at least 80 percent of the mileage use of which can be reasonably expected to be for the purposes of transporting commuters in connection with travel between their residences and their place of employment.

4. Disability

The definition of “disability” was amended so that it has the same meaning as in the Americans with Disabilities Act (ADA), 42 U.S.C. 12101, et seq. However, the definition in section 5302 does not apply to the half-fare provision in section 5307(c)(1)(D). The half-fare provision continues to apply to seniors, persons with Medicare cards, and persons who “because of illness, injury, age, congenital malfunction, or other incapacity or temporary or permanent disability (including an individual who is a wheelchair user or has semi-ambulatory capability), cannot use a public transportation service or a public transportation facility effectively without special facilities, planning, or design.”

5. Fixed Guideway

The definition of “fixed guideway” was amended to remove high occupancyvehicle lanes, although bus service operating in high occupancy vehicle lanes remains eligible for certain funds under the State of Good Repair Formula Program apportionment. The new definition of fixed guideway includes any facility for the exclusive use of transit vehicles, as well as facilities for rail, using a fixed catenary system (e.g. trolleybus service), for a passenger ferry system or for a bus rapid transit system (see new definition above).

6. Job Access and Reverse Commute Project

The SAFETEA-LU Job Access and Reverse Commute (JARC) Program, (section 5316), was repealed by MAP-21; however, job access and reverse commute projects are eligible under the sections 5307 and 5311 programs. A definition for “job access and reverse commute project” was added to section 5302 as follows: “a transportation project to finance planning, capital, and operating costs that support the development and maintenance of transportation services designed to transport welfare recipients and eligible low-income individuals to and from jobs and activities related to their employment, including transportation projects that facilitate the provision of public transportation services from urbanized areas and rural areas to suburban employment locations.” Please see sections IV.C. and F. of this notice for additional information.

7. Low-Income Individual

The term is defined as, “an individual whose family income is at or below 150 percent of the poverty line, as defined in section 673(2) of the Community Services Block Grant Act (42 U.S.C. 9902(2)), including any revision required by that section, for a family of the size involved.” The formulas for funding apportionment in sections 5307 and 5311 now include consideration of the number of low-income individuals in a rural or urbanized area for part of the apportionment. However, this definition does not apply to the formula for public transportation on Indian reservations, which defines a low-income individual as an individual whose family income is at or below 100 percent of the poverty line.

8. Private Provider of Public Transportation by Vanpool

This term is a new definition in Chapter 53 and is found in section 5323(i). A private provider of public transportation by vanpool is defined as a private entity providing vanpool services in the service area of a recipient using a commuter highway vehicle or a vanpool vehicle. Under MAP-21 and as described in section D of this notice, “Cross-Cutting Programmatic Requirements,” there is a new allowance for local match related to private vanpool providers.

9. Public Transportation

Congress amended the definition of “public transportation” to specify that public transportation is regular, continuing, shared-ride, surface transportation service that is “open to the general public or open to a segment of the general public defined by age, disability, or low income.” Public transportation does not include Amtrak service, intercity bus service, charter bus service, school bus service, sightseeing service, courtesy shuttle service for patrons of one or more specific establishments; or intra-terminal or intra-facility shuttle services.

10. Regional Transportation Planning Organization

This term is a new definition for Chapter 53, and is found in section 5303, Metropolitan Transportation Planning. A “regional transportation planning organization” is “a policy board of an organization” that a State may establish and designate under section 5304(l) “to enhance the planning, coordination, and implementation of statewide strategic long-range transportation plans and transportation improvement programs, with an emphasis on addressing the needs of nonmetropolitan areas of the State.” Section 5304(l)(5) further provides that, “if a State chooses not to establish or designate a regional transportation planning organization, the State shall consult with affected nonmetropolitan local officials to determine projects that may be of regional significance.”

11. Senior

This is a new term to Chapter 53, and means an individual who is 65 years of age or older. The term is used in section 5310, Enhanced Mobility for Seniors and Individuals with Disabilities.

C. Repealed Programs in FTA's Authorization

MAP-21 focuses on improving the efficiency of grant program operations by consolidating certain programs and repealing other programs. Several of the activities eligible under repealed programs can be found in programs continued or created under MAP-21. The following programs expired on September 30, 2012 and no new funding is authorized beyond fiscal year 2012. However, unobligated funds appropriated or authorized in FY 2012 and prior years remain available for obligation (for the established period of availability when appropriated or allocated) and expenditure, and follow program-specific requirements established under SAFETEA-LU and prior authorizations. In addition, there are new cross-cutting requirements under MAP-21 found in section III.D of this notice that apply to all grants after October 1, 2012.

1. Clean Fuels Grant Program (49 U.S.C. 5308)

The Clean Fuels Grant Program was a discretionary program and the final FY 2012 allocations were announced on September 14, 2012 in response to the NOFA published February 7, 2012 for sections 5308 and 5309 bus funds. Unobligated discretionary allocations (found in Table 7 on FTA's FY 2013 Apportionment Web site) may be obligated through the period of availability, following the SAFETEA-LU requirements.

2. Fixed Guideway Modernization (49 U.S.C. 5309(b)(2))

The Fixed Guideway Modernization Program was a formula program, and the funds for FY 2012 and prior years have been previously apportioned. Unobligated carryover balances for this program may be obligated through the period of availability, following the SAFETEA-LU requirements. Under MAP-21, elements of this program have been replaced with the State of Good Repair formula program (section 5337).

3. Bus and Bus Facilities Program (49 U.S.C. 5309(b)(3))

The discretionary Bus and Bus Facilities Program provided funds for capital bus and bus facility grants in support of the Department's State of Good Repair, Bus Livability, Veterans Transportation and Community Living, and Clean Fuels initiatives. In addition, SAFETEA-LU allocated funds under this program for Ferry Boat Systems, Fuel Cell Bus, and the Bus Testing program.

FY 2012 Bus and Bus Facilities discretionary funds have been allocated through the FY 2012 Veteran's and Community Living Initiative (VTCLI), State of Good Repair, and Bus and Bus Livability discretionary competitions. FY 2012 and prior year allocations remain available for the period of availability and must be used for the purpose selected.

Prior year allocations for Ferry Boat Systems, Fuel Cell Bus, and Bus Testing (found in Table 8 on FTA's FY 2013Apportionment Web page) may be obligated through the period of availability, following the SAFETEA-LU requirements. Under MAP-21, elements of this program have been replaced with the Bus and Bus Facilities formula program (section 5339).

4. Job Access and Reverse Commute (JARC) Program (49 U.S.C. 5316)

The formula JARC Program funds for FY 2012 and prior years under SAFETEA-LU have been apportioned. Unobligated carryover balances for the JARC program may be obligated through the period of availability, but must follow the SAFETEA-LU requirements. For example, section 5316 JARC projects must still be derived from a human service public transportation coordinated plan and must also be selected through an area-wide or statewide competitive selection process by the designated recipient.

Under MAP-21, activities that were funded under the section 5316 JARC program are eligible under sections 5307 Urbanized Area Formula Grants, and 5311 Formula Grants for Rural Areas. Please see section IV.C. and F. of this notice for additional information.

5. New Freedom Program (49 U.S.C. 5317)

The formula New Freedom Program funds for FY 2012 and prior years under SAFETEA-LU have been apportioned. Unobligated carryover balances for the New Freedom program funds may be obligated through the period of availability, but must follow the SAFETEA-LU rules and requirements. For example, section 5317 New Freedom projects must still be derived from a locally developed, coordinated public transit-human services transportation plan and must also be selected through an area-wide or statewide competitive selection process by the designated recipient.

Under MAP-21, the types of activities that were funded under the section 5317 New Freedom program are now eligible under section 5310, Formula Grants for the Enhanced Mobility of Seniors and Individuals with Disabilities. Please see section IV.E. of this notice for additional information.

6. Paul S. Sarbanes Transit in Parks Program (49 U.S.C. 5320)

FTA published a notice of funding availability on August 28, 2012 for the final allocation of program funding, which will be announced in fall 2012. Under MAP-21, public transportation investments serving national parks and other Federal lands remain eligible under the Federal Lands Transportation Program and the Federal Lands Access Program administered by the Federal Highway Administration (FHWA). Interested recipients should visit the FHWA Web page (http://www.fhwa.dot.gov) for additional information on these programs.

7. Alternatives Analysis Program (49 U.S.C. 5339)

FTA issued a notice of funding availability for FY 2012 funds on March 12, 2012. However, MAP-21 repealed the section 5309 requirement that Major Capital Investment projects must be based on the results of an alternatives analysis, eliminating the principal statutory requirement associated with section 5339 Alternatives Analysis Program grants. Therefore, the use of the FY 2012 Alternatives Analysis Program funds will be determined at a later date. Unobligated FY 2011 and prior year allocations remain available for the period of availability and must be used for the purpose selected. Unobligated discretionary allocations are listed in Table 16 on FTA's FY 2013 Apportionment Web page.

8. Over-the-Road Bus Accessibility Program (Section 3038, Pub. L. 105-85)

FTA issued a notice of funding availability on April 30, 2012. The final allocation of program funding is scheduled to be announced in fall 2012. Unobligated funds will be available for obligation until expended.

D. Cross-cutting Programmatic Requirements and Changes

The following cross-cutting requirements apply to all FTA programs as of October 1, 2012 unless otherwise noted. Additionally they also apply to programs that otherwise continue to follow SAFETEA-LU requirements.

1. Metropolitan and Statewide Planning

The planning programs provide funding and procedural requirements to metropolitan areas and States for multimodal transportation planning that is cooperative, continuous, and comprehensive, resulting in long-range plans and short-range programs of projects of transportation investment priorities. $127 million is provided in FY 2013 and $129 million in FY 2014. The planning programs are jointly administered by FTA and FHWA, which provides additional funding. Under MAP-21, four significant changes are noted below. These requirements will not go into effect until FTA and FHWA complete a rulemaking process and issue further guidance.

i. Establishes a performance-based planning process: MAP-21 requires Metropolitan Planning Organizations (MPOs) and States to establish performance targets that address forthcoming U.S. DOT-issued national performance measures that are based on the goals outlined in the legislation—safety, infrastructure condition, congestion reduction, system reliability, economic vitality, environmental sustainability, reduced project delivery delays, transit safety, and transit asset management. MPOs also must coordinate their performance targets, to the maximum extent practicable, with performance targets set by FTA grantees under the new performance measure requirements for safety and state of good repair. Transportation Improvement Programs (TIPs) must include a description of the anticipated progress toward achieving the performance targets resulting from implementation of the TIP. Five years after enactment of MAP-21, U.S. DOT is to provide Congress with a report evaluating the effectiveness of performance-based planning and assessing the technical capacity of MPOs in smaller areas to undertake performance-based planning.

ii. Requires transit representation on MPO policy boards in large urbanized areas: Within two years, MPOs in urbanized areas designated as transportation management areas must include officials of public transit agencies that administer or operate major modes of transportation, as well as representatives of public transit operators, on MPO policy boards.

iii. Supports optional scenario development: MPOs may undertake scenario development exercises in preparing the long-range transportation plan that consider alternative demographic growth, revenue options, and other factors.

iv. Allows designation of Regional Transportation Planning Organizations: Regional transportation planning organizations may be designated, comprised of volunteer local government and transportation officials, to assist the State in addressing the needs of nonmetropolitan areas. Accordingly, “statewide planning” has been renamed “statewide and nonmetropolitan planning” to signify the important role of local officials in nonmetropolitan areas of States in the development of statewide plans and programs.

2. Environmental Review Process

The National Environmental Policy Act (NEPA), 42 U.S.C. 4321,et seq.,and other Federal environmental laws, regulations and executive orders, require that every project proposed for FTA funding assistance be subjected tosome level of environmental review prior to its approval. MAP-21 has made changes to the environmental review process intended to accelerate the process for major projects and expand the lists of projects that are categorically excluded. MAP-21 environmental guidance and regulatory changes will be forthcoming.

3. Agency Safety Plans

Section 5329 requires all FTA grantees to develop comprehensive agency safety plans that at a minimum include methods for identifying and evaluating safety risks, strategies to minimize exposure to hazards and unsafe conditions, and performance targets for safety performance criteria and state of good repair standards established in a forthcoming National Public Transportation Safety Plan. More information regarding state of good repair standards is included in the next paragraph, section IV.D.4.a., of this notice. The agency safety plan and any updates must be approved by the recipient's board of directors (or equivalent entity) and certified by FTA or a State. The agency safety plan also will need to identify an adequately trained safety officer who reports directly to the recipient's chief executive and provide a comprehensive staff training program for operations personnel and personnel directly responsible for safety. The staff training program must include completion of a safety training program and continuing safety education and training. Plans developed pursuant to Part 659 of title 49 Code of Federal Regulations and in effect on October 1, 2012, will remain in effect until the new agency safety plan requirements are in place. For recipients without a 49 CFR part 659 plan in place on October 1, 2012, this requirement will not apply as a condition for receiving assistance until one year after the effective date of a final rule. Rural sub-recipients of section 5311 funds may have their plans drafted and certified by a State. Similarly, FTA will issue a rule designating small urban systems receiving section 5307 funding that may have their agency safety plan drafted or certified by a State.

4. Transit Asset Management Provisions (and Asset Inventory and Condition Reporting)

MAP-21 requires FTA to establish a national transit asset management system that includes: (1) A definition of state of good repair with performance measures; (2) a requirement that grantees develop transit asset management plans; (3) reporting requirements for asset inventory and condition assessments; (4) analytical process or decision support tools; and (5) technical assistance on asset management for grantees.

i. State of Good Repair and Performance Measures

Through a rulemaking, FTA will define “state of good repair” for transit systems. MAP-21 specifies that this definition will provide “objective standards for measuring the condition of capital assets * * * including equipment, rolling stock, infrastructure, and facilities.” At the conclusion of the rulemaking, grant recipients will be required to establish performance targets relative to the definition of state of good repair and to report these targets, and progress towards meeting them to FTA. The measures and targets also must be coordinated to the maximum extent practicable with the metropolitan and statewide transportation plans and transportation improvement programs (TIPs), as well as incorporated into recipients' agency safety plans.

ii. Transit Asset Management (TAM) Plans

MAP-21 requires that each recipient and subrecipient of FTA grants must establish a “transit asset management” (TAM) plan for its transit system. This requirement, however, will not be a condition for receiving FTA grant funds until FTA issues a rulemaking.

Through a rulemaking, FTA will establish requirements for a capital asset inventory, condition assessments, decision support tools, and prioritization of capital investments, all of which must be included in a TAM. Once the TAM rulemaking is issued, grantees apportioned funds under the new State of Good Repair (SGR) Formula Program (section 5337) will be required to include all SGR-funded projects in their own TAM plan.

iii. Reporting Requirements

MAP-21 also established new requirements for reporting asset inventories and condition assessments to FTA at sections 5326(b)(3), 5335(a), and 5335(c). FTA grantees and sub-recipients should look for a futureFederal RegisterNotice with proposed changes to the FTA's NTD Reporting Manual for more information and an opportunity to comment on FTA's implementation of these new statutory requirements.

iv. Tools and Technical Assistance

MAP-21 requires FTA to provide technical assistance on transit asset management, including a requirement for FTA to develop a “decision support tool” for use by transit systems in estimating capital investment needs and prioritizing capital expenditures. FTA has developed such a decision support tool, TERM-Lite, which is available online at:http://www.fta.dot.gov/TERM-Lite.This tool has been used by several transit agencies to assist them in estimating their investment needs, and will continue to be refined by FTA for this purpose.

5. Costs Incurred by Providers of Public Transportation by Vanpool

MAP-21 amends section 5323(i) “Government Share of Costs for Certain Projects” to include a paragraph that permits FTA to allow a recipient to count, as part of their local match for a capital project, funds used to purchase vanpool vehicles by private providers of public vanpool (including funds from fare revenues above operating expenses but not including any funding from Federal, State or local government sources). For the costs to be eligible for a recipient's local share, the recipient and the provider must have entered into a legally binding agreement requiring the provider to use the rolling stock in the recipient's service area.

6. Revenue Bonds as Local Match (5307, 5309, 5337)

Sections 5323(e)(1) and (2) allow recipients of Urbanized Area Formula Grants funds (section 5307), Fixed Guideway Capital Investment Grant funds (section 5309) and State of Good Repair Grant funds (section 5337) to use bond proceeds, secured by the revenues of a transit capital project, as local match for the project, provided that the grantee maintains a greater level of local transit investment in the subsequent three fiscal years (as demonstrated in the STIP) than in the current fiscal year and prior two fiscal years (three total).

7. Debt Service Reserve

Section 5323(e)(3) allows recipients to be reimbursed from section 5309 Fixed Guideway Capital Investment Grant funds for deposits of bond proceeds in a debt service reserve. Reimbursements from the unobligated FY 2012 and prior year section 5309(b)(2) Fixed Guideway Modernization Formula Grant funds and section 5309(b)(3) Bus, Related Equipment and Bus Facilities Grant funds are eligible after September 30, 2012. However, these two programs are repealed as of October 1, 2012 and FY 2013 funds will not be available for reimbursements except as provided under section 5309 as amended by MAP-21. MAP-21 also repealed the Debt Service Reserve Pilot Program forrecipients of section 5307 Urbanized Area Formula Grant funds. The establishment of a debt service reserve is included within the definition of a “capital project” in section 5302(3)(J), as amended.

8. Government's Share of Cost of Vehicles, Vehicle-Equipment, and Facilities for ADA and Clean Air Act Compliance

An FTA grant used for acquiring vehicles to comply or maintain compliance with the ADA or the Clean Air Act, 42 U.S.C. 7401,et seq.,now can cover 85 percent of net project costs. The previously used 83 percent Federal share (determined for administrative ease) is no longer necessary and should no longer be used. FTA grants for vehicle-related equipment or facilities needed to comply with or maintain compliance with the ADA or Clean Air Act remains at 90 percent of net project costs of the equipment of facilities attributable to compliance with the Act (the incremental cost).

9. Private Sector Participation

MAP-21 requires FTA to provide technical assistance when requested by project sponsors and grantees on best practices and methods for using private providers of public transportation, and on how to use public-private partnerships for alternative project delivery of fixed guideway capital projects. MAP-21 also requires FTA to identify public transportation laws, regulations or practices that impede public-private partnerships or private investment in transit capital projects. FTA must also develop procedures through regulation to address these legal impediments, as well as procedures to protect the public interest and any public investment in public transportation capital projects that involves public-private partnerships or private investment. Additionally, FTA must develop guidance to promote greater transparency and public access to public-private partnership agreements, and guidance regarding how to best document compliance by recipients of Federal assistance with the requirements regarding private enterprise participation in public transportation and planning and transportation improvement programs under sections 5303(i)(6), 5306(a) and 5307(c). MAP-21 does not, however, allow FTA to waive any provision of Federal law, including labor protections or NEPA.

10. Bus Testing

MAP-21 amended section 5318, the bus testing provision, to require FTA to issue a final rule by September 30, 2014, establishing a `pass/fail' standard for bus testing. Vehicles must meet performance standards for safety, structural integrity, reliability, performance (including braking performance), maintainability, emissions, noise, and fuel economy. Once FTA has issued the final rule, recipients may not use FTA funds to purchase a bus that has not received a passing test score.

11. Buy America

Procurements made with FTA financial assistance continue to be subject to the Buy America requirements in section 5323(j) and FTA's implementing regulation at 49 CFR Part 661, which requires end products to be manufactured or assembled in the United States unless a waiver has been issued by FTA. Waiver requests undergo an elevated level of scrutiny by FTA as part of the consideration process. MAP-21 amended section 5323(j) to require FTA to place waiver determinations in an easily identifiable location on DOT's Web site, in addition to publishing the waiver determination in theFederal Register. In addition, FTA is required to submit a report to Congress every year that lists any waivers granted during the preceding year.

12. Corridor Preservation

MAP-21 added a new provision in section 5323(q) that allows FTA, under certain conditions, to assist in the acquisition of right-of-way (ROW) before the completion of an environmental review for any transit project that will eventually be built on that ROW. FTA will publish draft guidance for public comment on the process for acquiring right-of-way.

13. Rail Car Procurements

MAP-21 amended the rolling stock requirements of section 5325 by extending the length of option years under rail car procurements to seven years. A grant recipient using Federal funds to enter into a multiyear contract to buy rolling stock and replacement parts may have an option in that contract to buy additional rolling stock or replacement parts for up to five years after the date of the original contract for bus procurements and for up to seven years after the date of the original contract for rail procurements. While the change adds two extra years for rail car procurements, it