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Notice

American Recovery and Reinvestment Act of 2009 Public Transportation Apportionments, Allocations and Grant Program Information

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AGENCY:

Federal Transit Administration (FTA), DOT.

ACTION:

Notice.

SUMMARY:

The “American Recovery and Reinvestment Act, 2009” (Pub. L. 111-5; “ARRA”), signed into law by President Barack Obama on February 17, 2009, includes $8.4 billion for transit capital improvements. This notice implements the transit formula program related provisions of the ARRA and provides program and grant application requirements for these funds, to be made available through Federal Transit Administration (FTA) assistance programs. Additional notices will be published in the near future for the transit discretionary program provisions in the ARRA.

DATES:

Complete grant applications must be submitted in TEAM by July 1, 2009. FTA must reallocate certain unobligated funds by September 1, 2009.

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FOR FURTHER INFORMATION CONTACT:

For general information about this notice contact Henrika Buchanan-Smith, Director, Office of Transit Programs, at (202) 366-2053. Please contact the appropriate FTA regional or metropolitan office (Appendix C) for any specific requests for information or technical assistance. An FTA headquarters contact for each major program area also is included in the discussion of that program in the text of the notice.

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SUPPLEMENTARY INFORMATION:

Table of Contents

I. Overview of This Notice

II. The American Recovery and Reinvestment Act of 2009

A. Overview of the ARRA

B. Public Transportation and the American Recovery and Reinvestment Act of 2009

III. FTA ARRA Programs and Funding

A. Transit Capital Assistance Program

B. Fixed Guideway Infrastructure Investment

C. Capital Investment Grants (New Starts and Small Starts)

IV. FTA Policy and Procedures for ARRA Grants Requirements

A. Civil Rights

B. Automatic Pre-Award Authority to Incur Project Costs

C. Grant Application Procedures

D. Reporting Requirements and Certifications Applicable to Recipients of ARRA Funding

E. Oversight

F. Technical Assistance

Tables

1. Appropriations and Apportionments for Grant Programs

2. Transit Capital Assistance (Urbanized)

3. Transit Capital Assistance (Urbanized) FORMULA

4. Transit Capital Assistance (Urbanized) Formula Data Unit Values

5. Transit Capital Assistance (Nonurbanized)

6. Fixed Guideway Infrastructure Investment Apportionments

7. Fixed Guideway Infrastructure Investment Formula

APPENDIX A: GRANT APPLICATION Start Printed Page 9657INSTRUCTIONS

APPENDIX B: ARRA QUESTIONS AND ANSWERS

APPENDIX C: REGIONAL AND METROPOLITAN OFFICE CONTACT INFORMATION

I. Overview

The American Recovery and Reinvestment Act of 2009 (ARRA) provides new funding for, among many other categories, public transportation capital projects. This legislation includes three separate capital investment programs for public transportation. Because of the purposes of the legislation, it presents both opportunities and responsibilities for those who provide public transportation throughout the United States.

This Federal Register notice does several things. First, it provides a summary of ARRA as it relates to public transportation programs. Second, the notice discusses in detail the FTA programs funded by the ARRA, including specific dollar amounts made available under ARRA for each program and program requirements for eligible projects. Third, the notice includes policies and requirements that apply to the ARRA funds, including general reporting requirements and specific application requirements for the different formula programs. Fourth, the notice includes tables that apportion funds distributed by formula. It does not allocate funds to New/Small Starts projects under the Capital Investment Grants program or make discretionary allocations for the transit energy program or the tribal transit program. FTA will issue subsequent notices addressing these programs. Finally, we include three appendices covering application instructions, Questions and Answers, and contact information for our regional and metropolitan offices.

II. The American Recovery and Reinvestment Act of 2009

A. Overview of the ARRA

The American Recovery and Reinvestment Act of 2009 (ARRA) was signed into law by President Barack Obama on Tuesday, February 17, 2009. The ARRA includes appropriations and tax law changes totaling approximately $787 billion to support multi-pronged efforts to stimulate the economy. Goals of the statute include the preservation or creation of jobs and promotion of an economic recovery, as well as the investment in transportation, environmental protection and other infrastructure providing long-term economic benefits.

Of the $787 billion of spending and tax law changes in ARRA, over $48 billion will be invested in transportation infrastructure, facilities, and equipment. The Secretary of Transportation has received an appropriation of $1.5 billion for a competitive surface transportation grant program, including public transportation projects. The Federal Highway Administration (FHWA) has received $27.5 billion for projects eligible under their Highways and Bridges program, including public transportation. FHWA funds can be used to support public transportation projects consistent with the Flexible Funding procedures under the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU). FRA has received $8 billion for high speed and intercity rail grants. Finally, FTA has received $8.4 billion for three categories of funding: Transit Capital Assistance, Fixed Guideway Modernization grants, and Capital Investment Grants (New Starts/Small Starts). More on the transit programs follows.

B. Public Transportation Programs and the ARRA

1. Introduction

The ARRA includes a total of $8.4 billion in General Fund dollars for public transportation, appropriated for three different programs: 1. Transit Capital Assistance, 2. Fixed Guideway Infrastructure Investment, and 3. Capital Investment Grants (New/Small Starts). Tables 1 through 8 of this notice list the ARRA transit formula funds apportioned in this Federal Register notice. Additionally, for each FTA program included in this notice, we have provided relevant information on the ARRA funding available, program requirements, period of availability, and other related program information and highlights, as appropriate.

The ARRA specifies that funds are to be used only for capital expenditures. This means that only items defined as capital under FTA's current law (Title 49, U.S.C. Chapter 53) are eligible activities under this program. (The one exception to this is program administration funds provided to States under the nonurbanized area program.)

Potential grantees are encouraged to identify projects or expenditures that meet the broader goals of the statute, including preserving or creating jobs, contributing to cleaning our environment through green purchases, retrofitting existing facilities, making additional public transportation opportunities available to more people, and helping ease fiscal problems at the state and local level.

An important aspect of this legislative initiative is to get the money working in the economy as quickly as possible. To foster this imperative, ARRA contains limited time frames to obligate these funds. As discussed in the detailed description of each program, the inability to secure an approved and executed grant within the statutory time limits will result in fund availability being withdrawn. FTA will reapportion these funds to areas that have successfully executed grants within the statutory time frames.

2. Capital Transit Assistance Program

The ARRA appropriates $6.9 billion for four separate grant programs in this category of funding. This notice covers only the funds apportioned by formula in two categories of funding: the urbanized area formula program and the non-urban formula program. (The tribal transit program and the energy savings program will be addressed in a separate notice.)

Specifically, this document apportions funds made available to potential program recipients based on the statutory formulas in 49 U.S.C. sections 5307, 5311 for the following formula programs: Transit Capital Assistance (urbanized areas) and Transit Capital Assistance (nonurbanized areas) allocated to States.

This Federal Register notice does not contain application requirements for two discretionary programs authorized in this capital transit program of the ARRA: a $17 million discretionary capital program for Indian Tribes and a $100 million discretionary capital program for energy saving measures by transit agencies. FTA anticipates issuing notices of Funding Availability for these two programs within the next two weeks.

3. Fixed Guideway Infrastructure Investment Program

The ARRA provides $750 million for FTA's Fixed Guideway Infrastructure Investment program to modernize or improve existing fixed guideway systems, which could include the purchase or rehabilitation of rolling stock, track, equipment, or facilities. Maintaining the nation's rail transit system is a core responsibility of transit agencies across the country. The Department's biennial Conditions and Performance Report gauges asset conditions and the level of investment needed to eliminate the backlog of repairs or necessary replacements. Current published reports indicate that existing pending needs exceed $25 billion. Start Printed Page 9658

4. Capital Investment Grants

The ARRA makes $750 million available for FTA's New and Small Starts programs. Additional financial support for these programs will generate over 20,000 jobs, will increase public transportation infrastructure, and will expedite the availability of additional transportation options. In addition, investing in these major capital investments offers communities significant opportunities to develop sound approaches for achieving their transportation, environmental, and community objectives. A separate Federal Register notice on the ARRA Capital Investment Grants program allocations will be published shortly.

5. Administration and Oversight of ARRA funds

ARRA authorizes FTA to use an amount from each of the program funding categories for administration and oversight of these programs. The ARRA provides oversight and administrative takedowns at the following levels: 0.75 percent of Transit Capital Assistance funds for Urbanized Area Formula funds and Growing States and High Density Allocations, 0.5 percent of Transit Capital Assistance funds for Nonurbanized Area Formula funds, one percent of Fixed-Guideway Infrastructure Investment funds, and one percent of Capital Investment Grants funds. These dollar amounts are identified in the funding tables contained in the description for each program.

III. ARRA FTA PROGRAMS: Funding and Eligibility Information

A. Transit Capital Assistance Program in this Notice

The Transit Capital Assistance Program authorizes $6.9 billion in funding for capital expenses as defined by 49 U.S.C. section 5302(a)(1). Transit Capital Assistance program funds are apportioned by formula to Urbanized Areas (UZAs) with populations at least 200,000 and to the State for Nonurbanized areas and UZAs with populations below 200,000. The Transit Capital Assistance Program funds are apportioned based on the following percentages that have been established in the ARRA: 80 percent of the funds are apportioned for grants under 49 U.S.C. section 5307 (Urbanized Area Formula program); 10 percent of the funds are apportioned in accord with 49 U.S.C. section 5340 for areas that are growing States or high density States (these funds are then added to the amounts made available under the Urbanized Area and Nonurbanized Area Formula Program); and the remaining 10 percent of the funds are apportioned for grants under 49 U.S.C. section 5311 (Nonurbanized Area Formula Program). Of the 10 percent apportioned to nonurbanized areas, 2.5 percent has been set-aside for discretionary allocation through FTA's Tribal Transit Program. Additionally, $100,000,000 of the Transit Capital Assistance program funds will be dedicated for discretionary energy-related investments. Neither the tribal transit nor energy savings discretionary programs are addressed in this Federal Register notice. The ARRA excludes from the formula apportionment the SAFETEA-LU computation for small transit intensive cities.

For more information about the Transit Capital Assistance Program (Urbanized Areas) contact Henrika Buchanan-Smith, Director, Office of Transit Programs, at (202) 366-2053. For information about the Transit Capital Assistance Program (Nonurbanized areas) contact Lorna Wilson, at (202) 366-2053.

1. Funding Levels

The ARRA provides $5,440,000,000 to the Transit Capital Assistance Program for UZAs. After the 0.75 percent deduction for administrative expenses and program management oversight and the addition of the urbanized area portion of the Section 5340 Growing States and High Density States funds, a total amount of $5,967,852,039 is available to be allocated to UZAs under the Transit Capital Assistance Program.

The ARRA provides $680,000,000 of the $6.9 billion available under the Transit Capital Assistance Program, to nonurbanized areas based on 49 U.S.C. section 5311. After the 2.5 percent set-aside for tribal transit, the 0.5 percent deduction for program management oversight and administrative expenses, and the addition of the nonurbanized area portion of Section 5340 Growing States and High Density States funds, a total amount of $765,847,961 is available to be apportioned in this notice to States to fund projects in nonurbanized areas under the Transit Capital Assistance Program.

The remainder of the $6.9 billion appropriated to the Transit Capital Assistance program will be allocated through competitive discretionary processes which includes $17,000,000 through the Tribal Transit program, and $100,000,000 allocated to energy-related investments. A breakdown of formula funds appropriated under the Transit Capital Assistance Program is shown in the table below.

Transit Capital Assistance

Total Appropriation$6,900,000,000
Energy Investment−100,000,000
Total Appropriation Remaining6,800,000,000
Appropriation—urbanized Areas5,440,000,000
Admin/Oversight Deduction−40,800,000
Section 5340 Funds Added1 586,652,039
Total Apportioned—urbanized5,967,852,039
Appropriation-nonurbanized680,000,000
Oversight Deduction−3,400,000
Tribal Program−17,000,000
Section 5340 Funds Added1 106,247,961
Total Apportioned-nonurbanized765,847,961
1 Note: This is the amount allocated to the program after the 0.75 percent deduction for oversight from section 5340 fund, which totaled $5,100,000.
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2. Basis for Formula Apportionment

Of the $6.9 billion available, $5.44 billion is apportioned to UZAs based on 49 U.S.C. section 5336. Different formulas apply to UZAs with populations of 200,000 or more and to UZAs with populations less than 200,000. For UZAs with 50,000 to 199,999 in population, the formula is based solely on population and population density. For UZAs with populations of 200,000 and more, the formula is based on a combination of bus revenue vehicle miles, bus passenger miles, fixed guideway revenue vehicle miles, and fixed guideway route miles, as well as population and population density. Table 2 displays the amounts apportioned under the Urbanized Area Formula Program, and detailed information about the urbanized area formula can be found in Table 3 and Table 4.

The nonurbanized area funds are apportioned based upon the nonurbanized population of each state relative to the national urbanized area and land area in nonurbanized areas. Table 5 displays the Transit Capital Assistance Program apportionments for nonurbanized areas.

3. Eligible Applicants

Eligible applicants for funds apportioned to UZAs are limited to designated recipients in accordance with 49 U.S.C. section 5307(a)(2) and other direct FTA grant recipients with the consent of the Designated Recipient. For nonurbanized area funds, the State is the only eligible applicant with the exception of the nonurbanized area funds that will be allocated to tribal recipients at a later date.

4. Program Requirements

Program guidance for the Urbanized Area Formula Program is found in FTA Circular 9030.1C, Urbanized Area Formula Program: Grant Application Instructions (October 1, 1998), supplemented by additional information or changes provided in this document. Additionally, program guidance on the Nonurbanized Area Formula program can be found in FTA Circular 9040.1F, Nonurbanized Area Formula Program Guidance and Application Instructions (April 4, 2007). Several important program requirements are highlighted below. Appendix B to this notice contains frequently asked questions and answers about the ARRA program.

a. Eligibility

Transit Capital Assistance funds may be used to fund eligible capital projects. In accordance with 49 U.S.C. section 5302(a)(1), eligible capital projects include: preventive maintenance; acquiring, constructing, supervising, or inspecting equipment or a facility for use in public transportation (including engineering, designing, location surveying, mapping, and acquiring right-of-way); transit-related ITS; rehabilitating buses; remanufacturing a bus; overhauling rail rolling stock; leasing a facility or equipment for use in public transportation where more cost-effective than purchase or construction; public transportation improvement that enhances economic development or incorporates private investment, including commercial and residential development, pedestrian and bicycle access to public transportation facilities, construction or renovation of intercity rail stations and terminals, renovation and improvements of historic transportation facilities, where the improvement enhances the effectiveness of a public transportation project and is physically or functionally related to that public transportation project, or creates a new or enhanced coordination between public transportation and other transportation and provides a fair share of revenue to be used in public transportation; ADA complementary paratransit in amounts not to exceed 10 percent of the recipient's formula apportionment; specified crime prevention and security expenses; establishing a debt service reserve; and mobility management.

b. Local Match

Under the ARRA, the Federal share of a Transit Capital Assistance grant is up to 100 percent of the net project cost of capital projects and state administrative expenses of the Transit Capital Assistance (nonurbanized) Formula program funds. Under the ARRA, operating funds are not eligible.

5. Period of Availability

The Transit Capital Assistance Program funds apportioned in this notice remain available to be obligated by FTA to recipients for a limited period of time. At least 50 percent of Transit Capital Assistance Formula funds apportioned in this notice must be obligated in a grant no later than September 1, 2009. On this date, FTA will withdraw any portion of the 50 percent that each State or urbanized area has not obligated and will subsequently redistribute to other States and UZAs that successfully obligated at least 50 percent of the funds apportioned to them and did not have any funds withdrawn. All remaining Transit Capital Assistance program funds must be obligated in a grant no later than March 5, 2010. Transit Capital Assistance Funds that remain unobligated at the close of business on March 5, 2010 will revert to FTA for redistribution to areas that have not had any funds withdrawn and that can promptly use the funding. Any Transit Capital Assistance program funds that remain unobligated at the close of business on September 30, 2010, will revert to the U.S. Treasury. A complete list of dates and deadlines will be posted on FTA's Web site following publication of this Federal Register notice.

B. Fixed Guideway Infrastructure Investment

The Fixed Guideway Infrastructure Investment program provides capital assistance for the modernization of existing fixed guideway systems as authorized under 49 U.S.C. section 5309(b)(2). Funds are allocated by a statutory formula to UZAs with fixed guideway systems that have been in operation for at least seven years. A “fixed guideway” refers to any transit service that uses exclusive or controlled rights-of-way or rails, entirely or in part. The term includes heavy rail, commuter rail, light rail, monorail, trolleybus, aerial tramway, inclined plane, cable car, automated guideway transit, ferryboats, that portion of motor bus service operated on exclusive or controlled rights-of-way, and high-occupancy-vehicle (HOV) lanes. Eligible applicants are the public transit authorities in those UZAs to which the funds are allocated. For more information about Fixed Guideway Infrastructure Investment contact Henrika Buchanan-Smith, Director, Office of Transit Programs, at (202) 366-2053.

1. FY 2009 ARRA Funding

The ARRA provides $750,000,000 for the Fixed Guideway Infrastructure Investment Program. The total amount apportioned for the Fixed Guideway Infrastructure Investment Program is $742,500,000, after the one percent deduction for program administration and oversight, as shown in the table below.

Fixed Guideway Infrastructure Investment Program

Total Appropriation$750,000,000
Admin/Oversight Deduction−7,500,000
Total Apportioned742,500,000

The FY 2009 ARRA Fixed Guideway Infrastructure Investment Program apportionments to eligible areas are Start Printed Page 9660displayed in Table 6. Detailed information regarding the Fixed Guideway formula is detailed in Table 7.

2. Basis for Formula Apportionment

The formula for allocating the Fixed Guideway Modernization funds contains seven tiers. The apportionment of funding under the first four tiers is based on amounts specified in law and National Transit Database (NTD) data used to apportion funds in FY 1997. Funding under the last three tiers is apportioned based on the latest available data on route miles and revenue vehicle miles on segments at least seven years old, as reported to the NTD. Section 5337(f) of title 49, U.S.C. provides for the inclusion of Morgantown, West Virginia (population 55,997) as an eligible UZA for purposes of apportioning fixed guideway modernization funds. This notice allocates funds on a one time basis consistent with the 49 U.S.C. section 5337 formula for the Fixed Guideway Modernization program. For the ARRA funds, FTA was able to meet the apportionment formulas for the first three tiers of funding. Because there were not enough funds to fully fund the fourth tier of the formula, the table reflects a pro rata amount to eligible recipients within the Tier Four Category. Tiers Five through Seven were not used for the ARRA apportionments, since the amount available did not reach those tiers.

3. Program Requirements

Fixed Guideway Infrastructure Investment funds must be used for capital projects to maintain, modernize, or improve fixed guideway systems. Eligible UZAs (those with a population of 200,000 or more) with fixed guideway systems that are at least seven years old are entitled to receive Fixed Guideway Infrastructure Investment funds. A threshold level of more than one mile of fixed guideway is required in order to receive Fixed Guideway Infrastructure Investment funds. Therefore, UZAs reporting one mile or less of fixed guideway mileage under the NTD are not included. However, funds apportioned to an urbanized area may be used on any fixed guideway segment in the UZAs. The program will be implemented under the Fixed Guideway Modernization Program guidance. Program guidance for Fixed Guideway Modernization is presently found in FTA Circular C9300.1B, Capital Program: Grant Application Instructions (November 1, 2008).

4. Period of Availability

For the fixed Guideway Infrastructure Investment Program in ARRA, at least 50 percent of funds must be obligated in a grant on or before September 1, 2009. At that time, FTA will withdraw any portion of the 50 percent that has not been obligated in a grant agreement. These funds will be redistributed to eligible UZAs that have not had any Fixed Guideway Infrastructure funds withdrawn. Furthermore, on March 5, 2010 FTA will withdraw any remaining unobligated funds from each UZAs and again redistribute such funds to UZAs that have not had any funds withdrawn and can promptly spend the funds. Any Fixed Guideway Infrastructure program funds that remain unobligated after September 30, 2010, will revert back to the U.S. Treasury.

C. Capital Investment Program—New Starts and Small Starts

The Capital Investment Grant program authorizes the Secretary of Transportation to make discretionary grants as authorized under 49 U.S.C. section 5309(d)-(e). The program will be implemented consistent with the requirements of the New Starts and Small Starts programs, which provide funds for construction of major capital investments in new fixed guideway systems, extensions to existing fixed guideway systems, or, in the case of Small Starts, corridor-based bus projects. This notice does not include an allocation of Capital Investment Program resources. FTA will issue a subsequent notice that announces project selections and additional guidance. For more information about New Starts project development contact Elizabeth Day, Office of Planning and Environment, at (202) 366-4033.

IV. FTA Policy Guidance and Procedures for ARRA Grants

A. Civil Rights

Existing regulations and guidance pertaining to the Americans With Disabilities Act (ADA), Equal Employment Opportunity (EEO), Title VI, and Disadvantaged Business Enterprise (DBE) programs apply to ARRA funds apportioned in this Federal Register notice.

Concerning DBE in particular, FTA does not expect grantees will need to amend FY 2009 overall goals. However, there are some key situations to consider. First, it may be that receipt of ARRA funds will bring a grantee above the $250,000 threshold amount, which triggers the requirement to comply with the DBE program, including goal setting. In this case the grantee will need to submit a DBE goal (in such a case, it may submit a single goal for the remainder of FY 2009 and entirety of FY 2010). Second, a grantee's receipt of additional ARRA funds could render the FY 2009 goal obsolete. This could occur if the additional funds create vastly different contracting opportunities, for example. In this case, the grantee may: (a) Submit a project goal to be approved by FTA's Administrator (project goals are appropriate only if there is a specific large, multi-year, and/or design-build project. Additional funding alone would not trigger the need for a project based goal); (b) amend the FY 2009 goal (with FTA approval per normal procedures under the DBE regulations); (c) submit a new goal for the remainder of FY 2009 and entirety of FY 2010 that accounts for contracting opportunities derived from ARRA financed projects; or (d) do not amend the 2009 goal, but include the ARRA project in your FY 2010 goal, if the ARRA-funded project will be primarily executed during FY 2010. Further Departmental guidance on the Disadvantaged Business Utilization program can be found at http://osdbu.dot.gov/​DBEProgram/​dbeqna.cfm#economic_​recovery.

Grantees should consult closely with their Regional Civil Rights Officer to determine which approach best applies to their specific situations. In the interim, grantees must immediately begin considering DBE and non-DBE availability and capacity as they relate to anticipated or potential projects funded by the ARRA, and discuss strategies for DBE utilization with the relevant contracting industries and DBE communities.

B. Automatic Pre-Award Authority To Incur Project Costs

1. General Policy

FTA provides pre-award authority to incur expenses before grant award for certain program areas. ARRA program funds will have pre-award authority consistent with the FTA programs under which the ARRA funds are allocated or apportioned. ARRA program funds that are distributed by formula will have blanket pre-award authority beginning October 1, 2008; ARRA discretionary tribal transit and energy programs funds will have pre-award authority once program funds are allocated to the project in a Federal Register notice; Capital Investment Grants Program allocations are subject to the New and Small Starts pre-award policy, discussed in detail in section B5 below. Start Printed Page 9661

2. Caution to New Grantees

While FTA provides pre-award authority to incur expenses before grant award for many projects, first-time grant recipients are discouraged from using this automatic pre-award authority and encouraged to wait until the grant is actually awarded by FTA before incurring costs. As a new grantee, it is easy to misunderstand pre-award authority conditions and not be aware of all of the applicable FTA requirements that must be met in order to be reimbursed for project expenditures incurred in advance of grant award. FTA programs have specific statutory requirements that are often different from those for other Federal grant programs with which new grantees may be familiar. If funds are expended for an ineligible project or activity, FTA will be unable to reimburse the project sponsor and, in certain cases, the entire project may be rendered ineligible for FTA assistance.

3. Policy Details

Pre-award authority allows grantees to incur certain project costs before grant approval and retain the eligibility of those costs for subsequent reimbursement after grant approval. The grantee assumes all risk and is responsible for ensuring that all conditions are met to retain eligibility. For the ARRA program, this pre-award spending authority permits a grantee to incur costs on an eligible transit capital project without prejudice to possible future Federal participation in the cost of the project. All pre-award authority is subject to conditions and triggers stated below:

a. Grantees may be reimbursed for expenses incurred before grant award, so long as funds have been expended in accordance with all Federal requirements. In addition to cross-cutting Federal grant requirements, program specific requirements must be met. For example: expenditure on State Administration expenses under State Administered programs must be consistent with the State Management Plan.

b. Preaward authority (beginning October 1, 2008 for the ARRA formula funds or allocation of discretionary funds in a Federal Register notice) for capital project implementation activities including property acquisition, demolition, construction, and acquisition of vehicles, equipment, or construction materials is triggered by completion of the environmental review process, signified by FTA's finding that the project is a categorical exclusion (CE) or FTA's signing of an environmental Record of Decision (ROD) or Finding of No Significant Impact (FONSI). Before exercising pre-award authority, grantees must comply with the conditions and Federal requirements outlined in paragraph 4 below. Failure to do so will render an otherwise eligible project ineligible for FTA financial assistance.

c. Blanket pre-award authority applies to formula funds apportioned under the Transit Capital Assistance Program and the Fixed Guideway Infrastructure Investment Program from October 1, 2008, until September 30, 2010. Blanket pre-award does not apply to Section 5309 Capital Investment Grant funds, Energy savings or Tribal Transit Program funds. Specific instances of pre-award authority for ARRA Capital Investment Grants—New and Small Starts projects are described in paragraph 5 below.

4. Conditions

The conditions under which pre-award authority may be utilized are specified below:

a. Pre-award authority is not a legal or implied commitment that the subject project will be approved for FTA assistance or that FTA will obligate Federal funds. Furthermore, it is not a legal or implied commitment that all items undertaken by the applicant will be eligible for inclusion in the project.

b. All FTA statutory, procedural, and contractual requirements must be met.

c. No action will be taken by the grantee that prejudices the legal and administrative findings that the Federal Transit Administrator must make in order to approve a project.

d. Local funds expended by the grantee after the date of the pre-award authority will be eligible for credit toward local match (if applicable for ARRA) or reimbursement if FTA later makes a grant or grant amendment for the project. Local funds expended by the grantee before the date of the pre-award authority will not be eligible for credit toward local match or reimbursement. Furthermore, the expenditure of local funds on activities such as land acquisition, demolition, or construction before the date of pre-award authority for those activities (i.e., the completion of the NEPA process) would compromise FTA's ability to comply with Federal environmental laws and may render the project ineligible for FTA funding.

e. The Federal amount of any future FTA assistance awarded to the grantee for the project will be determined on the basis of the overall scope of activities and the prevailing statutory provisions with respect to the Federal/local match ratio at the time the funds are obligated.

f. For funds to which the pre-award authority applies, the authority expires with the lapsing of the funds. Grantees should be mindful that a portion of ARRA funds begin to lapse to the UZAs and States on September 1, 2009. Please see the applicable program information in Section III above for program specific lapse dates.

g. When a grant for the project is subsequently awarded, the Financial Status Report, in TEAM-Web, must indicate the use of pre-award authority.

h. All Federal environmental, planning and other grant requirements must be met at the appropriate time for the project to remain eligible for Federal funding. The growth of the Federal transit program has resulted in a growing number of grantees that are inexperienced in compliance with Federal planning and environmental laws. FTA has therefore modified its approach to pre-award authority to use the completion of the NEPA process, which has as a prerequisite the completion of planning and air quality requirements, as the trigger for pre-award authority for all activities except design and environmental review.

i. The requirement that a project be included in a locally adopted metropolitan transportation plan, the metropolitan transportation improvement program and Federally-approved statewide transportation improvement program (23 CFR Part 450) must be satisfied before the grantee may advance the project beyond planning and preliminary design with non-Federal funds under pre-award authority. If the project is located within an EPA-designated non-attainment area or maintenance area for a national air quality standard, the transportation conformity regulations under the Clean Air Act, 40 CFR Part 93, must also be met before the project may be advanced into implementation-related activities under pre-award authority. Compliance with NEPA and other environmental laws and executive orders (e.g., protection of parklands, wetlands, and historic properties) must be completed before State or local funds are spent on implementation activities, such as site preparation, construction, and acquisition, for a project that is expected to be subsequently funded with FTA funds. The grantee may not advance the project beyond planning and preliminary design before FTA has issued a Categorical Exclusion, Finding of No Significant Impact, or Record of Decision consistent with FTA/FHWA environmental regulations at 23 CFR Part 771. Start Printed Page 9662

j. In addition, Federal procurement procedures, as well as the whole range of applicable Federal requirements (e.g., Davis-Bacon Act, Disadvantaged Business Enterprise, and Buy America) must be followed for projects in which Federal funding will be sought in the future. Failure to follow any such requirements could make the project ineligible for Federal funding. In short, this increased administrative flexibility requires a grantee to make certain that no Federal requirements are circumvented through the use of pre-award authority. If a grantee has questions or concerns regarding the environmental requirements, or any other Federal requirements that must be met before incurring costs, it should contact the appropriate regional office.

5. Special Requirements for Pre-Award Authority for ARRA Capital Investment Grants (New and Small Starts)

a. Preliminary Engineering (PE) and Final Design (FD) and Small Starts Project Development (PD). Projects proposed for Section 5309 Capital Investment funds are required to follow a federally defined New Starts project development process. This process includes, among other things, FTA approval of the entry of New Starts projects into PE and into FD and approvals regarding Small Starts projects. In accordance with Section 5309(d) and (e), FTA considers the merits of the project, the strength of its financial plan, and its readiness to enter the next phase in deciding whether or not to approve entry of a New Starts project into PE or FD or a Small Starts project into PD. Upon FTA approval of a New Starts project to enter PE, FTA extends pre-award authority to incur costs for PE activities. Upon FTA approval of a New Starts project to enter FD, FTA extends pre-award authority to incur costs for FD activities. Upon FTA approval of a Small Starts project to enter PD, FTA extends pre-award authority to incur costs for preliminary engineering activities. Once FTA has completed its environmental determination on the Small Starts project, FTA extends pre-award authority to incur costs for final design activities, right-of-way acquisition, and utility relocation. The pre-award authority for each phase is automatic upon FTA's signing of a letter to the project sponsor approving entry into that phase. PE and FD are defined in FTA's New Starts regulation at 49 CFR part 611 and further information on these project development milestones is available at http://www.fta.dot.gov/​index_​5221.html.

b. Real Property Acquisition Activities. FTA extends automatic pre-award authority for the acquisition of real property and real property rights for a New or Small Starts project upon completion of the NEPA process for that project. As noted above, the NEPA process is completed when FTA issues a CE, FONSI, or ROD. With the limitations and caveats described below, real estate acquisition for a New or Small Starts project may commence, at the project sponsor's risk, upon completion of the NEPA process.

For FTA-assisted projects, any acquisition of real property or real property rights must be conducted in accordance with the requirements of the Uniform Relocation Assistance and Real Property Acquisition Policies Act (URA) and its implementing regulations, 49 CFR part 24. This pre-award authority is strictly limited to costs incurred: (i) to acquire real property and real property rights in accordance with the URA regulation, and (ii) to provide relocation assistance in accordance with the URA regulation. This pre-award authority is limited to the acquisition of real property and real property rights that are explicitly identified in the final environmental impact statement (FEIS), environmental assessment (EA), or CE document, as needed for the selected alternative that is the subject of the FTA-signed ROD or FONSI, or CE determination. This pre-award authority does not cover site preparation, demolition, or any other activity that is not strictly necessary to comply with the URA, with one exception. That exception is when a building that has been acquired, has been emptied of its occupants, and awaits demolition poses a potential fire-safety hazard or other hazard to the community in which it is located, or is susceptible to reoccupation by vagrants. Demolition of the building is also covered by this pre-award authority upon FTA's written agreement that the adverse condition exists.

Pre-award authority for property acquisition is also provided when FTA makes a CE determination for a protective buy or hardship acquisition in accordance with 23 CFR 771.117(d)(12), and when FTA makes a CE determination for the acquisition of a pre-existing railroad right-of-way in accordance with 49 U.S.C. section 5324(c). When a tiered environmental review in accordance with 23 CFR 771.111(g) is being used, pre-award authority is NOT provided upon completion of the first-tier environmental document except when the Tier-1 ROD or FONSI signed by FTA explicitly provides such pre-award authority for a particular identified acquisition.

Project sponsors should use pre-award authority for real property acquisition and relocation assistance very carefully, with a clear understanding that it does not constitute a funding commitment by FTA. FTA provides pre-award authority upon completion of the NEPA process to maximize the time available to project sponsors to move people out of their homes and places of business, in accordance with the requirements of the Uniform Relocation Act, but also with maximum sensitivity to the plight of the people so affected. Although FTA provides pre-award authority for property acquisition upon completion of the NEPA process, FTA will not make a grant to reimburse the sponsor for real estate activities conducted under pre-award authority until a New Starts project has been approved into FD. Even if funds have been appropriated for the project, the timing of an actual grant for property acquisition and related activities must await FD approval to ensure that Federal funds are not risked on a project whose advancement beyond PE is still not yet assured.

c. National Environmental Policy Act (NEPA) Activities. NEPA requires that major projects proposed for FTA funding assistance be subjected to a public and interagency review of the need for the project, its environmental and community impacts, and alternatives to avoid and reduce adverse impacts. Projects of more limited scope also need a level of environmental review, either to support an FTA finding of no significant impact (FONSI) or to demonstrate that the action is categorically excluded from the more rigorous level of NEPA review.

Under FTA's environmental impact procedures at 23 CFR part 771, the costs incurred by a grant applicant for the preparation of environmental documents requested by FTA are eligible for FTA financial assistance (23 CFR 771.105(e)). Accordingly, FTA extends pre-award authority for costs incurred to comply with NEPA regulations and to conduct NEPA-related activities for a proposed New Starts or Small Starts project, effective as of the date of the Federal approval of the relevant STIP or STIP amendment that includes the project or any phase of the project. NEPA-related activities include, but are not limited to, public involvement activities, historic preservation reviews, section 4(f) evaluations, wetlands evaluations, endangered species consultations, and biological assessments. This pre-award authority is strictly limited to costs Start Printed Page 9663incurred to conduct the NEPA process, and to prepare environmental, historic preservation and related documents. It does not cover PE activities beyond those necessary for NEPA compliance.

d. Other New or Small Starts Activities Requiring Letter of No Prejudice (LONP). Except as discussed in paragraphs a) through c) above, a grant applicant must obtain a written LONP from FTA before incurring costs for any activity expected to be funded by New or Small Starts funds not yet awarded. To obtain an LONP, an applicant must submit a written request accompanied by adequate information and justification to the appropriate FTA regional office, as described in C below.

C. Grant Application Procedures

Grantees will be able to receive ARRA grant funds through the TEAM-Web system beginning March 9, 2009. The following grant procedures apply to ARRA program funds; however, more detailed grant application instructions including standard grant language can be found in Appendix A of this document.

1. Eligible recipients for project funds under the ARRA are direct and designated recipients in UZAs, States, and Tribal Transit providers.

2. An application for ARRA should be submitted electronically to the appropriate FTA regional office through TEAM-Web.

3. Grantees may not commingle ARRA funds into a grant application that contains FTA funding authorized under SAFETEA-LU or any prior authorization. Furthermore, grantees cannot apply for funding allocated under separate ARRA programs in a single grant. Example: If City “A” receives Transit Capital Assistance program funds under ARRA and funding for Fixed Guideway Infrastructure Investment Funds under ARRA, City “A” must apply to receive the Fixed Guideway Infrastructure Investment funds in one grant and develop a separate grant containing projects to be funded using the Transit Capital Assistance funds. Moreover, neither type of ARRA grant may include any FTA funding under 49 U.S.C. Chapter 53.

4. FTA will process ARRA grants promptly upon receipt of a completed application. Because ARRA grants must be processed in a timely manner to assure that project funds begin to flow into the economy as quickly as possible, FTA will consider an ARRA grant application complete if: (a) The TEAM grant application template has been completed; (b) the budget is firm; (c) the project details contain adequate information for determining eligibility; and (d) projects requiring a Finding of No Significant Impact (FONSI) or Record of Decision (ROD) have submitted the environmental documentation for review. After these prerequisites are met, FTA will assign a grant number, enabling official submittal of the grant for further processing. Once a grant number is assigned, FTA will immediately send the grant for Department of Labor (DOL) certification.

FTA is modifying its established grant development procedures to speed delivery of ARRA grants. Although FTA is allowing grants to be submitted at an earlier stage in development, the following requirements must still be met before grant award:

a. The project is listed in a currently FTA approved Metropolitan Transportation Plan, Metropolitan Transportation Improvement Program (TIP); and federally approved Statewide Transportation Improvement Program (STIP).

b. The grantee's required Civil Rights submissions are current.

c. The FY 2009 certifications and assurances are properly submitted.

d. The required environmental findings have been made.

e. The milestone information is complete. The grant must include sufficient milestones appropriate to the scale of the project to allow adequate oversight to monitor the progress of projects from the start through completion and closeout.

Note:

It is critical that grantees receiving ARRA grant funds update activity milestones and the financial status report on a quarterly basis.

f. The grant has been certified by DOL.

g. Necessary certifications are complete.

5. As stated above, grants containing ARRA funds must be submitted to DOL for certification of the labor protective arrangements before FTA can award the grant. To streamline the process, DOL intends to certify ARRA program grants in accordance with its procedures for certifying the current FTA program whose requirements are applicable. Accordingly, ARRA programs that follow the requirements of 49 U.S.C. section 5307 or 49 U.S.C. section 5309 will be referred out to the unions if the grant contains new project activities. Grants for like-kind equipment or replacements will not be referred out to the unions before certification. ARRA programs that follow the requirements of 49 U.S.C. section 5311 will be certified based on the special warranty provision including grants to Indian tribes. Additional information regarding grants that require referral can be found on DOL's Web site https://www.dol.gov/​esa/​olms/​regs/​compliance/​redesign_​2006/​redesign2006_​transitemplprotect.htm.

Consistent with DOL's guidelines, grants subject to a referral may require up to 60 days to complete. (29 CFR 215.3). Accordingly, the obligation deadlines associated with most ARRA program funds make it essential that grantees expecting to utilize the ARRA funding submit grants that require union referral to FTA for processing in a timely manner. FTA will consider a submittal timely if a complete ARRA formula grant is received on or before July 1, 2009.

6. Before executing an ARRA grant, the executing official must inform FTA via the TEAM system of the (1) purpose of the investment, and (2) the rationale for the investment. Grantees must select one or more of the following purposes in TEAM before the grant can be executed:

a. To preserve and create jobs and promote economic recovery.

b. To assist those affected negatively by the recession.

c. To provide investments needed to increase economic efficiency by spurring technological advances.

d. To invest in transportation infrastructure that will provide long-term economic benefits.

e. To stabilize State and local government budgets, in order to minimize reductions in essential services and counterproductive State and local tax increases.

In addition, grantees must also select one or more of the following rationales:

a. Project is ready to go (all applicable federal requirements are complete).

b. Use of Recovery funds for this project frees up other FTA/State/local resources for other purposes.

c. Project is high local/regional priority.

d. Project could not have been implemented without supplemental funding.

e. Funding accelerates completion and decreases over-all project costs.

f. Project provides equipment or facilities to increase transit ridership.

g. Project is a needed investment to bring assets to a state of good repair.

h. Project addresses immediate maintenance needs.

7. Other important issues that affect FTA grant processing activities are discussed below.

a. DBE Goal—Existing DOT and FTA regulations and guidance pertaining to the ADA, EEO, Title VI, and DBE Start Printed Page 9664programs will apply to the ARRA funds. Concerning the DBE program (49 CFR part 26) the U.S. DOT has issued ARRA DBE Questions & Answers at http://osdbu.dot.gov/​DBEProgram/​dbeqna.cfm#economic _recovery. This Q&A should address some of the unique issues and opportunities raised by the new spending, express DOT's expectations, and delineate grantees' continued obligations and options as they prepare for and execute their potential grants.

b. Special Conditions of Grant Award—In the interest of time, FTA is not issuing a separate grant contract for ARRA funds. However, because different requirements flow with the ARRA funds, these additional requirements will be added by FTA regional staff as conditions of grant approval in each TEAM application. Recipients applying for grants that contain ARRA funds must agree to the following grant conditions that will be included in the grant application.

1. Recipient of ARRA funds agrees to comply with reporting requirements and deadlines set out in section 1201(c) of Public Law 111-5.

2. Recipient of ARRA funds agrees to comply with reporting requirements and deadlines set out in section 1512 of Public Law 111-5.

3. Recipient of ARRA funds agrees that all data submitted to FTA in compliance with the requirements of Public Law 111-5 is accurate, objective, and of the highest integrity.

4. Recipient of ARRA funds acknowledges that receipt of ARRA funds is a “one-time” disbursement that does not create any future obligation by the FTA to advance similar funding amounts.

5. Recipient of ARRA funds agrees that it or its sub-recipients will report any credible evidence that a principal, employee, agent, contractor, sub-recipient, subcontractor, or other person has submitted a false claim under the False Claims Act or has committed a criminal or civil violation of law pertaining to fraud, conflict of interest, bribery, gratuity, or similar misconduct involving ARRA funds.

c. Buy America—The Buy America requirements under 49 U.S.C. section 5323(j) that typically apply to projects accepting Federal assistance under the Federal Transit program authorized under Chapter 53 of title 49, United States Code, apply to all capital public transportation projects funded with amounts appropriated in the ARRA. Therefore, an applicant, in carrying out a procurement financed with Federal assistance authorized under the ARRA must comply with applicable Buy America requirements in 49 U.S.C. section 5323(j) and 49 CFR part 661.

D. Reporting Requirements and Certifications Applicable to Recipients of ARRA Funds

As a condition of award, grantees receiving ARRA funds will be required to report on grant activities on a routine basis. FTA grantees will be responsible for reporting up-to-date and accurate information in the milestone status report and financial status report on a quarterly basis, as well as additional data elements that are required to be reported in www.recovery.gov. Additionally, special certifications and grant conditions also will be required of ARRA grant recipients. FTA will issue additional specific guidance on reporting requirements in the near future for your information. The ARRA statutory reporting requirements and certifications are identified below:

1. Section 1511: Certifications

For covered funds made available to State or local governments for infrastructure investments, the Governor, mayor, or other chief executive, as appropriate, is required to certify that the infrastructure investment has received the full review and vetting required by law and that the chief executive accepts responsibility that the infrastructure investment is an appropriate use of taxpayer dollars. Such certification must include a description of the investment, the estimated total cost, and the amount of covered funds to be used, and must be posted on a specified Web site. A State or local agency may not receive infrastructure investment funding from funds made available under ARRA unless this certification is made and posted.

On February 27, 2009, USDOT Secretary LaHood sent a letter to the Governors providing guidance and a template for this certification and instructing them to send the Section 1511 certification and the other two certifications by the Governor described below to the Department at the following address: TigerTeam@dot.gov. A single certification by the Governor, based on the established planning process, and including a link to a Web site posting of the Statewide Transportation Improvement Program, which must contain the required section 1511 information for each investment, will satisfy the requirement for certification by the Governor for both FHWA and FTA projects. FTA will provide further guidance in the near future about any additional certifications that may be required by local officials to ensure that all ARRA projects have been properly vetted.

2. Section 1512: Reports on Use of Funds

Recipient Reports.—Not later than 10 days after the end of each calendar quarter, each recipient that received recovery funds from a Federal agency shall submit a report to that agency that contains—

(i) The total amount of recovery funds received from that agency;

(ii) the amount of recovery funds received that were expended or obligated to projects or activities; and

(iii) a detailed list of all projects or activities for which recovery funds were expended or obligated, including—

(A) The name of the project or activity;

(B) a description of the project or activity;

(C) an evaluation of the completion status of the project or activity;

(D) an estimate of the number of jobs created and the number of jobs retained by the project or activity; and

(E) for infrastructure investments made by State and local governments, the purpose, total cost, and rationale of the agency for funding the infrastructure investment with funds made available under ARRA, and name of the person to contact at the agency if there are concerns with the infrastructure investment.

(iv) detailed information on any subcontracts or subgrants awarded by the recipient to include the data elements required to comply with the Federal Funding Accountability and Transparency Act of 2006 (Pub. L. 109-282), allowing aggregate reporting on awards below $25,000 or to individuals, as prescribed by the Director of the Office of Management and Budget.

The data elements required to comply with Public Law 109-282 are: name of entity receiving the award; the amount of the award; information on the award including transaction type, funding agency, the North American Industry Classification System Code or Catalog of Federal Domestic Assistance number (where applicable); program source; and an award title descriptive of the purpose of each funding action.

FTA will extract as much as possible of this information from grant information and standard reports provided through the TEAM electronic grants award and management system. Supplemental reporting may be required, however, to provide the project and contract level information. FTA will provide further reporting instructions at a later date. FTA is working with other modal Start Printed Page 9665administrations within the Department of Transportation (DOT) to standardize the information required from all DOT recipients. Additional frequency of reporting may be required to be responsive to Congressional oversight requirements.

3. Section 1512(h) Registration

Recipients of ARRA funds that are required to report information per subsection (c)(4) must register with Central Contractor Registration database (CCR) or complete other registration requirements as determined by the Director of the Office of Management and Budget (OMB).

The reporting and registration requirements are effective 180 days after enactment of ARRA. OMB has not yet determined whether to use the CCR or some other registration database. However, OMB has issued guidance requiring FTA and other Federal agencies to ensure that grantees and first tier subawardees (subrecipients and contractors) obtain a DUNS number, or update their DUNS record if necessary. OMB has not yet issued a final determination on the extent to which subawardees will be required to register in CCR.

4. Section 1201(a) Maintenance of Effort

Not later than March 19, 2009 for each amount that is distributed to a State or its agency from an appropriation in ARRA for a covered program, the Governor of that State is required to certify to the Secretary of Transportation that the State will maintain its effort with regard to State funding for the types of projects that are funded by the appropriation. As part of this certification, the Governor is required to submit to the Secretary of Transportation a statement identifying the amount of funds the State planned to expend from State sources as of February 17, 2009, during the period of February 17, 2009 through September 30, 2010, for the types of projects that are funded by the appropriation.

This requirement applies only to State funding for transportation projects eligible for ARRA funding. DOT will treat this maintenance of effort requirement through one consolidated certification from the Governor to the Secretary, which must include State funding for transit projects, as well as highway and other transportation modal projects.

5. Section 1201(2)(c) Periodic Reports

For amounts received under each covered program by a grant recipient under ARRA, the grant recipient shall include in the periodic reports information tracking:

(A) The amount of Federal funds appropriated, allocated, obligated, and outlayed under the appropriation;

(B) the number of projects that have been put out to bid under the appropriation;

(C) the number of projects for which contracts have been awarded under the appropriation and the amount of Federal funds associated with such contracts;

(D) the number of projects for which work has begun under such contracts and the amount of Federal funds associated with such contracts;

(E) the number of projects for which work has been completed under such contracts and the amount of Federal funds associated with such contracts;

(F) the number of direct, on-project jobs created or sustained by the Federal funds provided for projects under the appropriation and, to the extent possible, the estimated indirect jobs created or sustained in the associated supplying industries, including the number of job-years created and the total increase in employment since February 17, 2009 and

(G) the actual aggregate expenditures by each grant recipient from State sources for projects eligible for funding under the program during the period of February 17, 2009 through September 30, 2010, as compared to the level of such expenditures that were planned to occur during such period as of the date of enactment of ARRA.

Each grant recipient is required to submit the first of the periodic reports required alone not later than 90 days from February 17, 2009 and is required to submit updated reports not later than.

FTA will extract as much as possible of this information from grant information and standard reports provided through the TEAM electronic grants award and management system. Supplemental reporting may be required, however, to provide the project and contract level information. FTA will provide further reporting instructions at a later date. FTA is working with other modal administrations within DOT to standardize the information required from all DOT recipients, including the possibility of generating the required jobs data through the use of economic models and factors applied to the data provided in the grant awards and other information reported by the grant.

6. Section 1607

Section 1607 requires that the Governor certify within 45 days of enactment (April 3, 2009) that, for funds provided, the state will request and use funds provided by this Act and the funds will be used to create jobs and promote economic health. If the Governor does not provide this certification, then the state legislature may act to accept the funds.

7. Section 1609

Under section 1609(c), FTA is required to report to certain congressional committees every 90 days following enactment on the status and progress of projects funded or proposed for funding under the Act with respect to compliance with NEPA and its implementing regulations. FTA will necessarily ask recipients for assistance in compiling this quarterly report.

8. Other Reporting

To satisfy the needs for transparency and accountability related to funding appropriated under the ARRA, grantees may be required to provide additional information not yet specified in response to requests from the Office of Management and Budget (OMB), the Congressional Budget Office (CBO), the Government Accountability Office (GAO), or the DOT Inspector General (IG). FTA will inform grantees if and when such additional reports are required.

E. Oversight

Two key principles in the ARRA are transparency and accountability. Because the ARRA funds are being provided without a local share, (with the exception of the Capital Investment Grant program), FTA's careful stewardship of these funds is even more critical than under normal program provisions. To ensure funds are deployed rapidly, competently, and for the intended purposes, FTA is adapting some of its oversight reviews to accommodate a specialized ARRA oversight program. FTA will conduct periodic oversight reviews to assess grantee compliance with Federal requirements for projects funded under the ARRA. ARRA grantees already are monitored with FTA's comprehensive oversight program, which includes Triennial Reviews, capital construction reviews, civil rights reviews, drug and alcohol reviews, procurement system reviews, financial system reviews, planning certification reviews, and other more specialized reviews and these will continue under the rubric of our ongoing grant program.

In addition to maintaining its existing oversight program structure, FTA is developing new vehicles for ensuring that ARRA funding is expended consistent with the purpose and Start Printed Page 9666principles of the law. Additional training and technical assistance to support its grantees' efforts to comply with ARRA requirements also is being planned. FTA intends to work closely with its grantees to monitor progress in the implementation of ARRA transit programs and to deploy its oversight resources as necessary to assist in the achievement of the legislation's goals and objectives. FTA will post more details concerning its ARRA oversight program on its Web site as plans are finalized.

F. Technical Assistance

FTA headquarters and regional staff are pleased to answer your questions and provide any technical assistance you may need to apply for FTA ARRA funds and to manage the grants you receive. In addition to this notice, Questions and Answers regarding FTA's implementation of the ARRA, and additional resources may be viewed via the FTA Web site http://www.fta.dot.gov/​economicrecovery. Further, all FTA circular are posted on our Web site, including: C4220.1F, Third Party Contracting Requirements, dated November 1, 2008; and C5010.1D, Grant Management Guidelines (November 1, 2008). FTA is currently developing a toll-free hotline for civil rights-related ARRA inquiries. The number will be available at: http://www.fta.dot.gov/​civil_​rights.html. You may also contact the regional civil rights officer at the Regional Office listed in Appendix C.

Start Signature

Issued in Washington, DC, this 2nd day of March, 2009.

Matthew J. Welbes,

Acting Deputy Administrator.

End Signature

APPENDIX A—INSTRUCTIONS FOR PREPARING A GRANT APPLICATION USING ARRA FUNDS

1. Pre-Application Stage.

Note:

To streamline the grant development process, ARRA grants may receive official grant numbers and be submitted before all traditional pre-application requirements are complete. However, ARRA grants may not be awarded until all pre-application requirements have been satisfied. In addition, FTA is minimizing the project level detail required in grants for certain categories of funding, such as vehicle purchases. Sample language is included in this notice and sample grants may be accessed in the TEAM system for information purposes.

a. Planning. Project activities to be funded must be included in a Federally-approved Statewide Transportation Improvement Program (STIP) for capital and/or operating projects. FTA will not require that planning requirements be completed before the submission of grant applications for ARRA funding. However, project planning requirements must be complete and properly documented before grant award.

b. Environmental Determination. The impact that a proposed FTA assisted project will have on the environment shall be evaluated and documented in accordance with the National Environmental Policy Act of 1969 (42 U.S.C. section 4321 et seq.). Before assigning a grant number, the regional staff should assess the feasibility that any outstanding environmental reviews or actions will be completed in a timely manner and must be completed before grant award.

c. Annual Submission of Certifications and Assurances. A grant applicant applying for assistance under Federal Transit Programs including ARRA programs must submit certifications and assurances that are applicable to the grant applicant's active and new grants during the fiscal year. A grantee that has already submitted a FY 2009 Certifications and Assurances does not need to resubmit these assurances.

d. Civil Rights Submissions. Civil Rights submissions that may be required include a Title VI Plan, Equal Employment Opportunity (EEO) Program, Disadvantaged Business Enterprise (DBE) Program, and ADA Paratransit Plan. Typically, FTA's Regional Civil Rights Officer must verify that all required Civil Rights submissions are current at the time that the grant application is entered into TEAM. For ARRA funds, the grant number will be assigned before civil rights reviews are complete, but the grant will not be awarded with pending civil rights requirements. In addition, it may be necessary to verify compliance with specific Title VI, EEO, DBE and ADA requirements as part of the grant review and approval process. Please work closely with your Regional Civil Rights officer to ensure no delays in the award of a grant.

2. Application Stage (Team Information). Applications for ARRA funds must be submitted electronically through the Transportation Electronic Award Management (TEAM) System. Each ARRA program funding request must be applied for in its own grant (i.e., ARRA Capital Assistance Formula funds may not be applied for in the same grant as ARRA Fixed Guideway Modernization funds). Further, ARRA funds can not be commingled in a grant application with program funds apportioned under SAFETEA-LU.

ARRA grants should be developed using newly created Section codes in TEAM. These codes appear in the color red in the TEAM dropdown menu. The red is only to distinguish the ARRA section codes from other FTA program codes. ARRA grants should be developed using one of the following section codes:

96—Urbanized Area Formula—Economic Recovery

66—STP Urbanized Area Formula—Economic Recovery (FHWA Flex)

86—Nonurbanized Area Formula—Economic Recovery

06—STP Nonurbanized Area Formula—Economic Recovery (FHWA Flex)

36—New Start—Economic Recovery

56—Fixed Guideway—Economic Recovery

Information that should be entered into TEAM when preparing an application includes:

a. Recipient Information. Applicants should enter or update all required information about the organization in the appropriate fields in TEAM, including recipient address, contact information, union information, urbanized area identification number (UZA), Congressional district(s), DUNS number, etc. The information shall be current and accurate for each grant and periodically updated as changes occur.

b. Project Information. Applicants should identify the project start/end date, program date, Executive Order 12372 review date, metropolitan planning organization (MPO) concurrence date (if applicable), and grant project costs. The “brief project description” field should include information that can be used to report the type of infrastructure investment such as: 25 Replacement Buses, Intermodal Terminal Construction, etc.

(1) Project Description. This information must be in sufficient detail for FTA to obtain a general understanding of the nature and purpose of the planned activities. If applicable, the project description should identify subrecipients funded through the grant application and the projects being implemented by each subrecipient. There is a project description field as well as a specific text field for this information associated with each activity line item. Project activities shall be sufficiently described to assist the reviewer in determining eligibility under the program. State DOTs applying for Transit Capital Assistance Grants for rural recipients must include a program of projects (POP), which should be attached using the paperclip feature or included in this section.

(2) Program Date and Page of STIP or Unified Planning Work Program (UPWP). All projects for ARRA funds in the grant application must be included in the current STIP. The STIP is jointly approved by FTA and FHWA. FTA funds cannot be obligated unless the STIP is approved by FTA. The application should note the page(s) in the most recently approved STIP on which the project(s) contained in the application are listed. The electronic system has a field designated “program date” where the date of the most recent FTA/FHWA STIP approval should be entered.

In the case of ARRA grants, FTA regional offices will continue to process grants while awaiting STIP amendment actions. Grant numbers will be assigned before the inclusion of the STIP date in the grant application if the grantee is awaiting formal STIP action or approval.

c. Budget. The appropriate scopes and activity line items (ALI) should be used when developing the project budget. All sources of funds shall be identified and confirmed. All rolling stock procurements shall include vehicle description and fuel type; expansion activities shall include a brief discussion of the expanded service. The project budget should reflect the precise activities for which the grant funds will be used. As a streamlining measure, FTA is not requiring that grantees include any non-add scopes in the project budget when purchasing activities that are categorized as ITS, ADA, or security.

d. Project Milestones. Estimated completion dates for all milestones should be Start Printed Page 9667provided and updated quarterly. If milestones are not pre-populated by the TEAM system for a particular activity line item (ALI), use the add function to add milestones for that ALI to the grant application. At a minimum, activities that will require a contract award should have milestones tracking (1) the date the RFP is issued; (2) the anticipated date of contract award; and (3) the date the contract will be completed. Activity line items that are not contracted out should include (1) the date the activity is initiated and (2) the anticipated completion date.

It is critical that milestones for ARRA grant activities are updated and monitored quarterly from February 17, 2009, the date of enactment of the legislation.

e. Environmental Findings. The application should include a proposed classification of each ALI that is an independent project with discrete transit utility, in accordance with the FTA/FHWA environmental impact procedures. (See 23 CFR 771.115 and 771.117.) Grant applicants should refer to 23 CFR 771.117(c) and (d) for listings of projects that qualify as categorical exclusions (CEs). Many projects (such as vehicle purchases that can be accommodated within existing yards and shops, purchase of software and hardware, security upgrades, mobility management, preventive maintenance, preliminary engineering) meet the criteria for a and require no further action.

f. Fleet Status. The fleet status report should be completed in order to purchase vehicles under the Transit Capital Assistance Program for UZAs; however, a completed fleet status report will not be required for any other ARRA program funds. A grantee who wishes to use ARRA funds to purchase vehicles that would cause the grantee's fleet to exceed the applicable spare ratio requirements should contact their FTA regional office. FTA will consider approving exceptions to a spare ratio requirement if the request meets certain criteria, such as: the excess spare ratio would be temporary in nature, with it returning to within the 20 percent level within 2-3 years of delivery of the new vehicles, or whether the buses would “green” the fleet of the transit agency.

g. Application Submission. Once FTA deems (1) the TEAM application template completed, (2) the activities eligible, (3) the budget complete and firm, and (4) environmental documentation submitted or near submittal for applications requiring a FONSI or ROD, FTA will assign a grant number. At this point, the grant is ready to be pinned and submitted in TEAM by the designated recipient/grantee. As previously stated, ARRA grants may be submitted prior to the completion of all pre-application requirements such as: Civil Rights documentation, Planning, and NEPA review. This concurrent review process is a departure from FTA's standard operating procedures and only applies to grants for ARRA program funds.

Note:

Although ARRA program grants can be officially submitted to FTA for review and approval, grant funds can not be awarded or obligated until all applicable federal requirements have been met and documented in the application.

h. Certification of Labor Protective Arrangements. With the exception of Transit Capital Assistance Grants allocated to nonurbanized areas which are covered by the special warranty provision, ARRA Act grants will be sent to DOL, as soon as the budget is confirmed, budget details are included in the grant, and the application is officially submitted for processing. DOL procedures have minimum wait times built in for replies or objections by management and unions. Accordingly, a grantee's prompt response to DOL communications regarding the grant before the expiration of the minimum wait period could result in the grant being certified before the end of the allowable processing period.

Transit Capital Assistance grants for nonurbanized areas tribes are covered by the special warranty provision and will be sent to DOL for information immediately prior to fund reservation and grant award.

i. Grant Approval. Once FTA staff determines through a final review of the application that FTA program requirements have been met and that the ARRA section 1511 certification is made and posted to a Web site, FTA will reserve the funds and obligate the grant.

j. Grant Execution. After FTA has awarded the grant, the applicant must execute the award before funds can be drawn down from the grant. Before executing ARRA grants, the grantee will be prompted to select both the rationale for the investment and the purpose of the investment from menus that have been established in the reservation screen. ARRA grants that include activities funded using pre-award authority will require the submission of a Financial Status Report before grant execution.

Application Checklist

Part I—Recipient Information

1. Is the Grantee Contact & Other information Current and Complete?

2. Are Annual Certifications & Assurances pinned?

3. Is UZA/Congressional District information entered and accurate?

4. Is union contact information entered and accurate?

5. Has Civil Rights Program Documentation been approved by FTA?

6. Has the applicant's DUNS Number been entered in the appropriate field?

Part II—Project Details

1. Does the Project Description (including the POP (Transit Capital Assistance—Nonurbanized areas) and other attachments) include adequate descriptive information of funded projects and subrecipients?

2. Are the project activities included in the grant eligible to be funded using ARRA program funds?

3. Has a split allocation letter been submitted for UZAs with more than one direct grant recipient?

4. Is the program of projects attached for state administered grant to nonurbanized grants?

Part III—Project Information

1. Has the grant been identified as a new application or amendment?

2. Start/End date entered?

3. Has the Program Date (STIP or UPWP date) been entered?

4. Have Control Totals been entered?

5. Does the brief project description field adequately articulate what is being funded (example: Bus replacements, Intermodal Center Construction, etc.)?

6. If pre-award authority is applicable, has “yes” been selected?

7. Has the EO 12372 Review field been completed, if applicable?

Part IV—Budget

1. Are ALI codes entered under the appropriate scope codes?

2. Is grant for up to 100% Federal funds?

3. Does the funding amount entered in the budget match financial information entered in the control totals in the “Project Information” field?

4. Has one percent been budgeted for capital transit enhancements? (only applicable to Transit Capital Assistance Funds allocated to UZAs over 200,000 in population.)

a. Federal Funds.

b. Local Funds.

4. Does the rolling stock (vehicle) line item contain accurate information such as:

a. Description of vehicles purchased.

b. Fuel Type.

5. Have details been entered into the “Extended Budget Descriptions”?

a. Has descriptive information been added in the details section of each ALI that identifies the items being funded using the line item?

Part V—Project Milestones

1. Are milestones listed for each ALI? (If an ALI does not have milestones, they should be added.)

2. Have estimated completion dates been entered?

Part VI—Environmental Findings (NEPA)

1. Has an environmental finding been entered for each ALI?

Standard Language for ARRA Grants

The following standard language has been approved for ARRA grants. This language provides enough detail for FTA to determine eligibility and assign a grant number.

Preventive Maintenance

This application is funded as follows:

2009 Transit Capital Assistance Grants—Urbanized Area Funding Formula Funding Program

Our estimated operating budget, as defined by NTD Reporting System (NTD), for ____(insert time-period) is $ (amount). Estimated Preventive Maintenance (PM) costs in the operating budget for equipment and facilities is $ (amount) less $ (amount) for warranty recovery leaving $ (Balance) available for federal participation at the 100/0 rate. This grant will apply federal funds of $ (amount applied) to this allowable share. Additional PM for the period of (insert applicable time-period) is in grant (Grant Number).

These grant activities are a categorical exclusion under NEPA. Start Printed Page 9668

Rolling Stock

(Initial Grant) Start of TEAM input—insert this is an initial grant This application is funded as follows:

2009 Transit Capital Assistance Grants—Urbanized Area Funding Program

This grant applies the 2009 ARRA Formula allocation of $(amount) to bus replacement. We will purchase approximately (number, type and length of buses, e.g. five low floor—40 foot buses) that have an expected useful life of (insert applicable useful life for buses being purchased) years. The vehicles being replaced have met their useful life of (insert applicable useful life standard of replaced vehicles). A Federal ratio of 100/0 will apply. These buses will meet the Clean Air Act standards (CAA) and the Americans with Disabilities Act (ADA) requirements. The fleet status section of TEAM has been updated to reflect this fleet addition. We are able to operate and maintain this vehicle expansion

These grant activities are a categorical exclusion under NEPA.

Facility

This application is funded as follows:

American Recovery and Reinvestment Act—Transit Capital Assistance Program (Urbanized)

This project will use $(amount) of (Section ____ ) ARRA funds for a __(purpose and location i.e., transit center in Edmonds, WA). This project includes—see sample descriptions:

This center will service the Washington State Ferries, AMTRAK, Sound Transit Commuter rail, North End Taxi, and the bus services of King County Metro and Community Transit (need information for all operators to send to DOL). Additionally, bike racks and lockers will be added for use by ferry, rail and bus passengers. This project will also include a waiting room rest room. This project is also funded under grant number ______A Documented Categorical Exclusion (DCE)/Finding of No Significant Impact (FONSI)/Record of Decision (ROD) was issued on ______. A copy of this approval is attached to this grant and the environmental section of TEAM is complete.

Appendix B—Allocation, Use and Eligibility of FTA ARRA Funds Questions and Answers

Q. Can a local agency combine ARRA funds and other sources to implement a project?

A. While each recipient must apply for a separate grant for each economic recovery funding source, a single project may be funded with multiple funding sources, including economic recovery and other FTA formula and discretionary resources.

Q. Will the Financial Status Report and Milestone Progress Report reporting requirements for ARRA grants be different than current requirements?

A. Yes. Recipients of ARRA funds will be required to report not later than 10 days after the end of each calendar quarter. FTA will extract as much information as possible from grant information standard reports provided through the TEAM system. Supplemental reporting may be required to provide the contract and project level information.

Q. Can grantees receive economic recovery grants if the agency's ability to apply for FTA program funds is currently suspended?

A. Grantees that are currently in a fundable status to receive a grant under FTA programs will be eligible to receive economic recovery funds. Grantees concerned about their status should contact their FTA regional office.

Q. What can ARRA funds be used for?

A. The law states that funds will be available for capital expenditures authorized under 49 U.S.C. 5302(a)(1), which describes eligible capital expenses. States may continue to use up to 15% of funds apportioned at the State level to administer the non-urbanized program on FTA's behalf.

Q. Are project administration costs eligible for funding?

A. Yes. ARRA funds can be used to fund the administrative costs associated with administering capital projects, including costs associated with reporting on project and grant status.

Q. Do ARRA program funds have pre-award authority?

A. Yes, FTA will extend pre-award authority to economic recovery program funds consistent with the program requirements of the applicable FTA program. Economic recovery funds administered under the requirements of Section 5307, Section 5311, or Fixed Guideway Modernization will have blanket pre-award authority from October 1, 2008, until September 30, 2010. There are two exceptions: the energy savings and tribal transit projects will have pre-award authority from the date that project selections are announced in the Federal Register. Economic recovery funds administered in accordance with the requirements of the Section 5309 Capital Investment Grant program (New/Small Starts) will have pre-award authority only for the stage approved up to that point. For example, upon approval to enter preliminary engineering, the grantee has pre-award authority to incur preliminary engineering costs. For more information, refer to the FY 2009 Apportionments Notice published in the Federal Register, December 18, 2008.

Q. Can a grantee use ARRA funds to purchase vehicles if the agency's spare ratio will exceed the applicable standard?

A. A grantee wishing to use ARRA funds to purchase vehicles that would cause the grantee's fleet to exceed the applicable spare ratio requirements should contact their FTA regional office. FTA will consider approving exceptions to a spare ratio requirement if the request meets certain criteria, such as: the excess spare ratio would be temporary in nature, with it returning to within the 20 percent level within 2-3 years of delivery of the new vehicles, or whether the buses would “green” the fleet of the transit agency.

Q. Who will be eligible to receive ARRA funds?

A. ARRA funding will be made available to current recipients of: FTA's Urbanized Area Formula Program (49 U.S.C. section 5307); Formula Grants for Other Than Urbanized Areas Program (49 U.S.C. section 5311); Fixed Guideway Modernization Formula Program (49 U.S.C. section 5309); federally recognized tribes (49 U.S.C. section 5311(c) (1)); and Capital Investment Grants (49 U.S.C. section 5309)

Q. When will FTA consider apportioned funds as “obligated?”

A. For the purposes of the withdrawal provision, FTA will consider funds obligated on the date of grant award.

Q. Is a local match required with use of ARRA funds?

A. No local match is required except for the Capital Investment Grant Program.

Q. Can ARRA funds be used for operating expenses?

A. No. ARRA funds may be used only for capital expenses. The funds differ from the normal eligibility of FTA's Urbanized Area Formula program (Section 5307) for UZAs with less than 200,000 in population and Non-Urbanized Area Formula program (Section 5311), which can be used for operating expenses.

Q. Can ARRA funds be used for preventive maintenance activities?

A. Yes. Capital projects as defined by 49 U.S.C. 5302(a)(1) are eligible under the law, and preventive maintenance is included in the list of eligible capital expenditures.

Q. Can ARRA funds be used for preliminary engineering activities?

A. Yes. Capital projects, as defined by 49 U.S.C. 5302(a)(1), are eligible under the law. Specifically, 49 U.S.C. 5302(a)(1)(A) includes engineering and design work, location surveying, mapping, and right-of-way acquisition as eligible capital expenses.

Q. Can ARRA funds be used by State DOTs to administer the program?

A. Yes. States may continue to use up to 15% of funds apportioned at the State level to administer the program for non-urbanized areas on FTA's behalf.

Q. Will the 50% of funds awarded during the 180-day period be tracked by program or by grantee?

A. Neither. FTA will track the amount of funds obligated on the urbanized area and State level. Therefore, designated recipients and State DOTs should consider project readiness when making allocations. Example: Brownstone is apportioned $100,000 and obligates $30,000 before 180 days after apportionment. FTA will withdraw $20,000 from Brownstone's apportionment which is $50,000 (50% of apportionment) less the $30,000 which was obligated. Brownstone will still have $50,000 (remaining 50% of apportionment) available to be obligated on or before one year of the apportionment.

Q. If a contract has already been signed and/or a bid awarded, can ARRA funds be used?

A. Yes, if local funds were used to advance a project under FTA's pre-award authority provision or a Letter of No Prejudice.

Q. If an FTA grantee receives ARRA funds from FHWA, can the funds be transferred to FTA?

A. Yes.

Q. Can FHWA funds transferred to FTA be used for operating?

A. No. FTA will follow current Surface Transportation Program transfer rules.

Q. Will the states and UZAs be penalized if the vehicles are not delivered in time?

A. No. Start Printed Page 9669

Q. Will all current recipients of SAFETEA-LU Fixed Guideway Modernization funds receive ARRA Fixed Guideway Infrastructure Investment funds?

A. No. Some areas do not meet the standard required to be included in the apportionment calculations under the Fixed Guideway Modernization (FGM) tiers for which ARRA funds are available. The $750 million in FGM funds under AARA is not sufficient to fund all tiers of the FGM formula. The allotment of the funds to the tiers, in accordance with Section 5337, results in full funding of tiers 1, 2, and 3, and partial funding of tier 4, in the amount of $169,100,000. FTA is not permitted to pro-rate the $750 million over all of the FGM formula tiers. The first tier allocates specific amounts to designated areas. Funds allotted to tiers 2, 3, and 4 are apportioned using the 1997 standard.

If an area did not receive an FGM apportionment in 1997, it did not meet the 1997 standard and, thus, it is not eligible to be apportioned funds under tiers 2-4, unless that law specifies otherwise.

Actions Required Before Receiving Funds

State DOT and MPO Actions

Q. What actions do State DOTs and MPOs need to take, in coordination with transit agencies to ensure timely award and expenditure of funds?

A. States and MPOs, in coordination with transit agencies, should conduct the transportation planning activities necessary for adding proposed ARRA program projects to plans, TIPs and STIPs. Planning tasks such as conducting public involvement, demonstrating fiscal constraint, and performing travel model runs and analyses prerequisite to making transportation air quality conformity determinations should take place now. This is necessary to ensure timely amendment of the documents to include ARRA projects and to award funds as soon as possible. This work should have already begun. If it has not, it should be started immediately.

In identifying and proposing additional projects for amendment into TIPs and STIPs, it is reasonable to assume ARRA program funds equivalent to a doubling of the current full-year amount of comparable FTA program funds—Sections 5307 Urbanized Area Formula program, 5309 Fixed-Guideway Modernization program, and 5311 Non-Urbanized Area Formula program. FTA has not determined how Capital Investment Grant Funding (New/Small Starts program in 49 U.S.C. 5309) will be allocated at this time. Once the necessary planning and air quality conformity work has been completed, MPOs and State DOTs may amend their plans, TIPs and STIPs. FTA, in coordination with FHWA, can make any necessary conformity findings on the amended plans and TIPs, and approve the STIP amendment requests.

Attainment and Nonattainment Conditions. If the project is in an area that is in attainment of air quality standards, the MPOs would take action and then submit the amended TIP to the State for incorporation into the STIP. The State would submit the amended STIP to FHWA/FTA for review and approval. With advance coordination among the parties, some of these items can be performed concurrently.

If the project is in an air quality nonattainment or maintenance area, the addition of activities or projects that are exempt from conformity could be accomplished as a simple amendment and would not necessitate a conformity determination. See List of Projects that are Exempt from Air Quality Conformity.

States and the MPOs should begin now to do the necessary planning work, such as model runs for the various scenarios; analysis work needed for conformity, if necessary; public involvement; and any other planning support work to get prepared. This preparatory technical work can be completed, and action taken to approve the necessary amendments along with conformity determination, if required.

Once the planning and any necessary conformity work has been completed, the MPO policy boards and State DOTs may amend their plans, TIPs and STIPs, and FTA, in coordination with FHWA, may make any necessary conformity determinations.

Q. Can State DOTs and MPOs count the recovery funds to demonstrate “fiscal constraint” in plans, TIPs, and STIPs?

A. Yes. Funds may be used to demonstrate fiscal constraint of plans, TIPs, and STIPs in areas that are in attainment, nonattainment, or maintenance of air quality standards. This special determination is analogous to the assumption of a continuing flow of Federal funds

Q. Can State DOTs and MPOs use ARRA funds to do transportation planning activities necessary to amend TIPs and STIPs in preparation for subsequent fund award?

A. Funding from the ARRA program is limited to capital program assistance, and transportation planning is not an eligible activity for the funds that will be made available to FTA. MPOs and States should utilize the planning funds programmed in existing Unified Planning Work Programs and State Planning and Research Programs to support their planning efforts.

Q. Can substitution of ARRA funds for FTA funds on projects programmed in the TIP and STIP be handled administratively?

A. Yes, provided that the action involves only a change in the source of the funds. The adopted amendment procedures governing your specific State or region should be consulted to determine what actions are eligible as administrative amendments to the TIP or STIP.

Q. Can ARRA funds be used to support non-federal projects not currently listed in plans, TIPs or STIPs?

A. Yes, provided that the non-federal projects are eligible activities for ARRA funding (i.e. capital assistance), that they can be amended into plans, TIPs, and STIPs, and that compliance with applicable federal requirements such as the environmental review process required under NEPA, other environmental laws, and any additional applicable federal requirements can be expeditiously achieved.

Q. Can MPOs and States process TIP and STIP amendments to add ARRA-funded projects as “lump-sum” amounts?

A. It depends. Yes, if the term “lump-sum” refers to a “package” of individually identified projects proposed for amendment into TIPs and STIPs. In addition, in accordance with 23 CFR Part 450, Statewide and Metropolitan Transportation Planning, projects that are not considered to be of appropriate scale for individual identification in the TIP and STIP may be grouped by function, work type, and/or geographic area using the applicable classifications under 23 CFR 771.117(c) and (d) and/or 40 CFR part 93. The adopted amendment procedures governing your specific state or region should be consulted for guidance as to “lump sum” amendments requirements. A “lump-sum” dollar figure without a list of individual projects or indication of overall project “group” would not provide sufficient information for MPOs, States, and FTA/FHWA to approve amendments of TIPs and STIPs or track the use of ARRA funds.

Q. Can State DOTs and MPOs use ARRA funds to do transportation planning activities necessary to amend TIPs and STIPs in preparation for subsequent fund award?

A. Funding from the ARRA program is limited to capital program assistance, and transportation planning is not an eligible activity for the funds that will be made available to FTA. MPOs and States should utilize the planning funds programmed in existing Unified Planning Work Programs and State Planning and Research Programs to support their planning efforts.

Q. Can FTA, jointly with FHWA, make conditional STIP approvals?

A. No. Conditional STIP approvals are not allowed under existing regulations. The planning regulations (23 CFR 450.218(b)) do allow FTA/FHWA to: approve the entire STIP; approve the STIP subject to certain corrective actions being taken; or under special circumstances, approve a partial STIP covering only a portion of the State. However, if States and MPOs complete the steps detailed above, FTA/FHWA can approve the STIP amendments immediately.

Q. What public review and comment activities do organizations need to undertake prior to receiving funds?

A. The public involvement and consultation provisions adopted and published by metropolitan and statewide transportation planning processes apply to planning and programming of projects supported with ARRA funds. The provisions outlined in MPO Participation Plans and documented public participation processes of States describe the locally agreed upon requirements for public review in the planning process, including the schedule and period of time for public input and comment that must be met. Additionally, public review and comment required by the environmental process must be undertaken.

Transit Agency Actions

Q. What actions do transit agencies need to take before applying for funds?

A. Planning Process. Projects must be included in the approved Statewide Transportation Improvement Program (STIP) and, in UZAs, the metropolitan transportation plan (Plan) and Transportation Improvement Program (TIP). Transit agencies should be working within their metropolitan Start Printed Page 9670or statewide transportation planning processes to ensure that their priority projects are included in those documents and made ready for grant award. Therefore, FTA strongly encourages transit agencies to reach out to Metropolitan Planning Organizations (MPO) or State Departments of Transportation (State DOT) to begin work as soon as possible to ensure that public transportation projects are included in approved plans, TIPs and STIPs, so that the projects are ready and available to advance to grant award, and to begin expending funds, as soon as possible.

Environmental Review. Environmental requirements that apply to projects—the National Environmental Policy Act (NEPA) and Section 4(f) of the Department of Transportation Act, among others—must be met. Areas should consider prioritizing projects that qualify as categorical exclusions or have completed or nearly completed NEPA in order to meet the anticipated timeframes for obligation of funds in the new legislation. To the extent that other environmental requirements apply and have not been satisfied, grantees should begin consulting with managers of affected resources at the earliest opportunity.

Projects with Incomplete Environmental Processes. A project for which a categorical exclusion or an environmental assessment is in the process of being prepared, but nearing completion, likely will qualify as a “quick-start” activity targeted for economic recovery investment. A project for which an environmental impact statement is nearing completion may qualify as a quick-start activity if a record of decision is expected to be executed shortly. In accordance with section 1609(b) of the Act, FTA staff will provide guidance on the most efficient course of action for completing the environmental process (including the National Environmental Policy Act (NEPA) process and other environmental requirements, such as section 106 of the National Historic Preservation Act and section 4(f) of the Department of Transportation Act, for any project that may qualify as a quick-start activity.

Q. Can ARRA funds be used to substitute for money in an existing grant that has not been expended?

A. No. ARRA program funds cannot be used to replace funds already obligated in an existing FTA grant even if those funds have not been expended. ARRA funds can, however, be used to replace program funds identified in STIP and TIP but not yet awarded in a grant.

Also, because FTA needs to segregate the funds being made available from ARRA legislation, agencies will need to apply for the ARRA funds in a new grant application.

Q. Will FTA consider approving grants before completion of the environmental process?

A. As a general rule, FTA does not award program funds in a grant until the NEPA process and review have been completed. Grantees with projects in the final stages of NEPA review should contact the appropriate FTA regional office for direction.

Grant Application Information

Q. Can a transit agency combine all ARRA funds into a single grant application?

A. No. Each grant recipient must apply for a separate grant for each ARRA program under which they are allocated funds.

Q. Can a transit agency amend an existing FTA grant to add the ARRA funds?

A. No. FTA program funds cannot be commingled with ARRA funds. Each grant recipient must develop a separate grant for each ARRA program it seeks funds from.

Procurement & Contracting

Q. Can FTA allow progress payments on procurements?

A. Progress payments are made to the contractor only for costs incurred in the performance of the contract. The grantee must obtain adequate security for progress payments, which may include taking title, letter of credit or equivalent means to protect the grantee's interest in the progress payment. More discussion on this subject can be found in 4220.1F, Chapter III.

Q. Are there any changes to Federal procurement and contracting rules for grantees anticipated with these new ARRA funds?

A. Presently, FTA anticipates that existing U.S. DOT procurement and contracting regulations (found in 49 CFR part 18) and official guidance (found in FTA's Third Party Procurement Circular), including the Disadvantage Business Enterprise (DBE) program requirements will apply in full force to ARRA funded projects. U.S. DOT's Office of General Counsel has issued official guidance via an ARRA-specific DBE Question & Answer site to address issues raised by the ARRA legislation, express DOT's expectations, and delineate grantees' continued obligations and options as they advance grants.

Q. Are there ways that I can expedite contract delivery of the ARRA funds?

A. There are several opportunities that FTA grantees can take to expedite contract delivery of the ARRA funds, as well as any other FTA program funds. FTA's Best Practices Procurement Manual contains information on how transit agencies and other FTA grantees can partner with other grantees to do joint purchases of items such as rolling stock. For any other information on how to issue contracts using FTA funding, please go to FTA's Third Party Procurement web site where you can find an array of procurement resources, including a site-specific search engine and an extensive list of Frequently Asked Questions.

Grantees should identify any capital projects (such as bus garage repairs or renovations) for ARRA funds. Grantees can initiate any contracting (statement of work, purchase requests and independent cost estimates) actions, so that when the funding becomes available, timely contract awards can be made.

Q. Is piggybacking onto existing contracts allowed?

A. Yes. Piggybacking is permissible when the solicitation document and resultant contract contain an “assignability clause” that provides for the assignment of all or a portion of the specified deliverables as originally advertised, competed, evaluated and awarded. If the supplies were solicited, competed and awarded through the use an indefinite-delivery-indefinite-quantity contract (IDIQ), then both the solicitation and contract award must contain both a minimum and maximum quantity that represent the reasonably foreseeable needs of the party(s) to the solicitation and contract. If two or more parties jointly solicit and award an IDIQ contract, then there must be a total minimum and maximum. See Attachment 1 of FTA's Best Practices Manual for the Piggybacking Worksheet.

Grantees are encouraged to pursue any joint or cooperative procurements (including piggybacking) of vehicles across state lines. Grantees may place orders against existing State or local contracts. It is advantageous to use existing contract rights if appropriate assignability clauses are in place so that supplies or services can be quickly obtained.

Q. Can FTA permit “change orders” to existing Federal or non-Federal contracts?

A. Modifications to contracts are allowed based on the terms and conditions established at the time of award. As a general rule, the owner agency of a contract is the only entity permitted to “modify” or “change” that contract's terms and conditions. If the contract stipulates that a portion or portions may be modified, then user agencies are restricted to those instructions. Roles and responsibilities of recipients in modification and changes to contracts are discussed in FTA Circular 4220.1F, chapter VI.

Q. Can ARRA funding be added to projects/procurements that don't currently have Federal funding in them?

A. Not if construction has already commenced. The FTA planning, environmental, and other requirements for such project will not have been satisfied at the appropriate time. If construction has not been initiated, the applicant should consult with FTA regional office about possible ARRA funding. The planning and environmental requirements would have to be met, and no construction or other implementation activity could commence until these requirements have been met. Also, when adding funding to project/procurements that were awarded with other than Federal funds, it is imperative that the contract modification issued to add those funds include all of the federally required clauses (see FTA Circular 4220.1F, Appendix D). Also, the modification must be bilateral.

Q. Is there any way that our contracting processing can be accelerated?

A. Grantees can use design/build and the flexibility to shorten bid times. In addition, you may want to look into setting up contracts that provide the kind of management services essential to moving a collection of projects, including financial management, procurement following Federal procedures, scheduling, cost control, design and construction management, and performance management reporting. This would not relieve a State or transit agency of responsibility for such activities.

In keeping with federal cost principles (2 CFR 225), such costs determined to be “indirect” in nature must be charged to an Start Printed Page 9671approved indirect cost allocation plan for distribution to all benefiting cost objectives or paid for with State funds. Such a task order contract could (1) fill gaps in capacity to deliver a highly peaked, high visibility and high political risk stimulus program, or (2) provide “insurance” in the event they or other agencies in the state need immediate access to such resources. Such a contract would be a clear risk management/mitigation step and at no cost to the client if tasks are not assigned.

Department of Labor Certification

Q. Is DOL certification required and can the process be streamlined?

A. Yes. The U.S. Department of Labor (DOL) will need to certify grants awarded using ARRA funds. In accordance with DOL's guidelines, grants subject to a referral may require up to 60 days to complete (29 CFR 215.3). To streamline the process, DOL intends to certify ARRA program funds consistent with its procedures for certifying the current comparable FTA program. Accordingly, ARRA programs that follow the requirements of 49 U.S.C. section 5307 or 49 U.S.C. section 5309 will be referred out if the grant contains new project activities. Grants for like-kind equipment or replacements will no longer need to be referred out to the unions before certification. Furthermore, ARRA programs that follow the requirements of 49 U.S.C. section 5311 will be certified based on the special warranty provision including grants to Indian tribes. Additionally, grantees may reduce processing time by responding immediately to DOL's requests related to your grants. FTA is working closely with DOL to identify additional ways to streamline the process and will post additional information as it becomes available.

Q. When can ARRA grants be assigned official TEAM application numbers and be submitted for DOL review?

A. ARRA grants should be assigned an official number as soon as the budget is developed and project details are sufficient to make an eligibility determination. Departing from FTA's standard grant procedures, FTA will allow ARRA grants to be assigned a number and submitted for DOL review before the completion of in-house FTA reviews. Of course, all reviews must be satisfactorily completed before FTA can obligate any funds in a grant.

Transit Capital Assistance—Urbanized Area Grantees

Q. In UZAs with multiple direct FTA grant recipients, should the designated recipient notify FTA about the local allocation of funds?

A. Yes. Consistent with current practice under Section 5307, designated recipients in UZAs with multiple direct recipients should notify FTA, in writing, of the local allocation, or split, of recovery funds.

Q. When will FTA require a supplemental agreement?

A. Consistent with current practice under Section 5307, a supplemental agreement will be required when a grant is awarded to a direct recipient in an urbanized area if that recipient is not the designated recipient.

Q. Will the Governor need to allocate funds to small urbanized areas under the Governor's apportionment (50,000-200,000 in population)?

A. Yes, consistent with current Section 5307 requirements for urbanized areas between 50,000 and 200,000. The Governor should notify FTA of any changes to the published allocations before any application of the small urbanized area is submitted for ARRA formula funds.

Q. Can grantees in small urbanized areas (pop. 50,000-200,000) apply for funding directly from FTA, or will States be required to apply for funds in these areas in a single consolidated grant?

A. ARRA funds allocated to the Governor for small urbanized areas (pop. 50,000-200,000) are subject to the requirements of Section 5307 and will be administered consistent with current practice. FTA will not require a consolidated grant for the urbanized areas of a State with populations less than 200,000. Once a Governor allocates recovery formula funds to each urbanized area between 50,000 and 200,000 in population (in accordance with Section 5307), then FTA will make grants directly to recipients in those areas.

Q. Will the section 5307 amounts include section 5340 funds?

A. Yes. The legislation identified 10% of the transit capital assistance funds to be distributed according to the section 5340 Growing States and High Density States formulas. These amounts are included in the amounts apportioned to the UZAs.

Q. Will the 1% for transit enhancements apply to ARRA funds administered under sections 5307 for urbanized areas over 200,000 in population?

A. Yes, UZAs over 200,000 must spend 1% of the area's Transit Capital Assistance funds on transit enhancements; however, only capital transit enhancement projects can be funded using ARRA funding.

Q. Will we be required to check the security static button in TEAM?

A. Yes. Consistent with the Section 5307 requirement, grantees must check the security static button in TEAM to confirm that the grantee will expend one percent or more of the Transit Capital Assistance funds for security purposes or that spending the one percent is not necessary at that time.

Q. Will Section 5307 transfer rules apply?

A. Yes, the transfer provisions of Section 5336(f) are applicable. (1) Funds can be transferred from small urbanized areas (under the Governor's apportionment) to nonurbanized areas after consultation with local officials and public transportation operators in each area that will lose the amount apportioned. (2) Funds from large urbanized areas may be transferred by the designated recipient to small urbanized areas. (3) The Governor may also use funds apportioned to small urbanized areas throughout the State at the beginning of the 90 day period before the funds lapse (available 90 days after ARRA Transit Capital Assistance allocations are published in the Federal Register).

Q. If Section 5307 funds can be transferred in accordance with 5336(f), what is the relationship with the reallocation process? Will the new grantee receive additional time to contract or spend resources?

A. No—funds must be obligated within the applicable timeframe.

Q. Will the section 5307 apportionment for a small urbanized area that qualifies for Small Transit Intensive Cities (STIC) formula funding, in FY 2009, include STIC funds?

A. No, the language in the ARRA directs that the formula not include 49 U.S.C. § 5307 (i)(1) and (j) that provide for a one percent takedown for STICs and the STIC formula.

Q. Since ADA services are an eligible capital activity, will this be limited to 10% of an urbanized area's ARRA funding?

A. Yes. The 10 percent limitation would apply. Section 5302(a)(1)(I) explicitly defines nonfixed route ADA paratransit as an eligible capital expense but only to the extent that the amount does not exceed 10% of the recipients annual formula apportionments under Section 5307 and 5311.

Transit Capital Assistance Program—Nonurbanized Areas Grantees

Q. Are capital intercity bus purchases eligible?

A. Yes, all Chapter 53 requirements apply to ARRA funds.

Q. Are states required to use 15% of formula funds allocated to non-urbanized areas for intercity bus?

A. States must use at least 15% of ARRA formula funds allocated to non-urbanized areas for intercity bus services. However, consistent with Section 5311 requirements, States can certify that intercity bus needs have been met after consultation.

Q. Can States use up to 15% of funds for program administration?

A. Yes. States may use up to 15% of formula funds allocated under the requirements of Section 5311 to cover State administrative expenses, at 100% Federal share.

New Starts and Small Starts—Section 5309

Q. How will FTA distribute major capital investment funding provided by the ARRA legislation?

A. ARRA states that funding priority shall be given to New Starts and Small Starts projects currently in construction (which FTA interprets as projects with a Full Funding Grant Agreement (FFGA) or Project Construction Grant Agreement (PCGA)) or to projects able to obligate funds within 150 days of enactment. FTA is still determining how the ARRA funding will be distributed to New and Small Starts projects. The Act specifies that applicable Chapter 53 requirements apply. This would include the federal/local share provisions; it also means that only projects that have received acceptable project ratings in the New or Small Starts process are eligible for the funding.

Q. Will projects with existing FFGAs or PCGAs that receive ARRA funds still receive their FY09 apportionments?

A. FTA will provide projects with their FY09 apportionments as identified in the existing FFGAs or PCGAs, to the extent appropriated by Congress.

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FTA Regional and Metropolitan Offices

Richard H. Doyle, Regional Administrator, Region 1—Boston, Kendall Square, 55 Broadway, Suite 920, Cambridge, MA 02142-1093, Tel. 617 494-2055Robert C. Patrick, Regional Administrator, Region 6—Ft. Worth, 819 Taylor Street, Room 8A36, Ft. Worth, TX 76102, Tel. 817 978-0550.
States served: Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and VermontStates served: Arkansas, Louisiana, Oklahoma, New Mexico and Texas.
Brigid Hynes-Cherin, Regional Administrator, Region 2—New York, One Bowling Green, Room 429, New York, NY 10004-1415, Tel. No. 212 668-2170Mokhtee Ahmad, Regional Administrator, Region 7—Kansas City, MO, 901 Locust Street, Room 404, Kansas City, MO 64106, Tel. 816 329-3920.
States served: New Jersey, New YorkStates served: Iowa, Kansas, Missouri, and Nebraska.
New York Metropolitan Office, Region 2—New York, One Bowling Green, Room 428, New York, NY 10004-1415, Tel. 212-668-2202.
Letitia Thompson, Regional Administrator, Region 3—Philadelphia, 1760 Market Street, Suite 500, Philadelphia, PA 19103-4124, Tel. 215 656-7100Terry Rosapep, Regional Administrator, Region 8—Denver 12300 West Dakota Ave., Suite 310, Lakewood, CO 80228-2583, Tel. 720-963-3300.
States served: Delaware, Maryland, Pennsylvania, Virginia, West Virginia, and District of ColumbiaStates served: Colorado, Montana, North Dakota, South Dakota, Utah, and Wyoming.
Philadelphia Metropolitan Office, Region 3—Philadelphia, 1760 Market Street, Suite 500, Philadelphia, PA 19103-4124, Tel. 215-656-7070.
Washington, DC Office, 1990 K St. NW., Suite 510, Washington, DC 20006, Phone: (202) 219-3562 or (202) 219-3565, Fax: (202) 219-3545.
Yvette Taylor, Regional Administrator, Region 4—Atlanta, 230 Peachtree Street, NW. Suite 800, Atlanta, GA 30303, Tel. 404 562-3500Leslie T. Rogers, Regional Administrator, Region 9—San Francisco, 201 Mission Street, Suite 1650, San Francisco, CA 94105-1926, Tel. 415 744-3133.
States served: Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, Puerto Rico, South Carolina, Tennessee, and Virgin IslandsStates served: American Samoa, Arizona, California, Guam, Hawaii, Nevada, and the Northern Mariana Islands.
Los Angeles Metropolitan Office, Region 9—Los Angeles, 888 S. Figueroa Street, Suite 1850, Los Angeles, CA 90017-1850, Tel. 213-202-3952.
Marisol Simon, Regional Administrator, Region 5—Chicago, 200 West Adams Street, Suite 320, Chicago, IL 60606, Tel. 312 353-2789Rick Krochalis, Regional Administrator, Region 10—Seattle, Jackson Federal Building, 915 Second Avenue, Suite 3142, Seattle, WA 98174-1002, Tel. 206 220-7954,
States served: Illinois, Indiana, Michigan, Minnesota, Ohio, and WisconsinStates served: Alaska, Idaho, Oregon, and Washington.
Chicago Metropolitan Office, Region 5—Chicago, 200 West Adams Street, Suite 320,Chicago, IL 60606, Tel. 312-353-2789
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[FR Doc. E9-4745 Filed 3-4-09; 8:45 am]

BILLING CODE 4910-57-P