Docket Management Facility
US Department of Transportation
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Re: Federal Transit Administration Docket Number 2005-22841
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On behalf of the more than 1,600 member organizations of the American Public Transportation Association (APTA), I write to provide comment on the Federal Transit Administration's (FTA) Advance Notice of Proposed Rulemaking (ANPRM) concerning Major Capital Investment Projects (Small Starts), published January 30, 2006, at 71 FR 4864. We respond below to the eligibility, evaluation and ratings, and planning and project development process issues raised in sections III, IV, and V of the Notice.
About APTA
APTA is a non-profit international trade association of more than 1,600 public and private member organizations, including transit systems; planning, design, construction and finance firms; product and service providers; academic institutions; and state associations and departments of transportation. More than ninety percent of Americans who use public transportation are served by APTA member transit systems.
General Comments
In short, APTA believes that a "new paradigm" is needed for FTA's management of the Small Starts program and the evaluation and rating of projects. The new paradigm should create a 'Quick Starts' process that reduces the time and cost of planning and project development.
Eligibility
For bus projects advanced for Small Starts funding, as required by statute, a "substantial portion" must operate in a separate right-of-way dedicated for public transit during peak hours, or the project must represent a substantial investment in other features. FTA, in defining "substantial" as used in this context, must preserve flexibility
during the initial years of the program. FTA should define the term subjectively to maintain this flexibility rather than resort to one or more specific objectives, albeit unproven, criteria such as a specific percentage of the project to be dedicated. To the degree that FTA might desire to target funds to projects with certain characteristics, we suggest use of non-regulatory guidance at this point. As noted in the enclosed Transportation Cooperative Research Program (TCRP) Quick Response Project J-06/Task 66 Small Starts Justification Criteria, there are a variety of ways that substantial might be defined and none seems to stand out as a clear preference.
The ANPRM lays out several proposals that we believe would unnecessarily limit project eligibility. In section III(d), the ANPRM suggests that FTA prohibit the segmentation of a project into two or more Small Starts. One of the stated motivations for this suggestion is to reduce demand on FTA's oversight resources. A far better approach for managing the workload would be to simplify and streamline the process. Subdividing New Starts projects into multiple Small Starts should not be discouraged, provided that each segment can stand alone on its merits in terms of the Small Starts criteria. Prohibiting projects from being subdivided in to multiple Small Starts, while requiring New Starts to be advanced as Minimum Operable Segments (MOS), creates an unnecessary and confusing difference between the programs that provides no efficiency or other value. It is possible that a MOS of a New Starts project is, in fact, a Small Starts project.
In section III(d), the ANPRM suggests that FTA could establish a minimum threshold of existing ridership. As above, we think that a threshold is unnecessary, and that projects should be given an opportunity to stand on its merits. A corridor where the transit market is relatively untapped should not be automatically deemed ineligible for funding.
Finally, FTA should consider how it will address projects that start in the Small Starts program and, as the projects become better defined, prove to require investments larger than the Small Starts program parameters. For example, if a project was in the Project Development phase as a Small Start, and its cost grew to more than $250 million (or its 5309 share grew to more than $75 million), there should be some mechanism that would allow for movement between the programs without penalizing a sponsor proceeding in good faith.
Evaluation and Ratings
A primary motivation for creating the Small Starts program was to offer a simplified process, compared with the New Starts process, for projects that involve less cost and risk. While it is reasonable to use the existing New Starts process as a starting
point, it is incumbent upon FTA to make the Small Starts program simpler, less costly, and less time consuming for project sponsors and FTA alike. To accomplish this, FTA should adopt the following practices:
- allow for "warrants" for "Very Small Starts". Any project meeting these warrants would automatically be determined to be cost-effective. Any such warrants ought to be comprehensive, looking not only at mobility but also at land use and economic development;
- establish the No Build alternative as the Baseline for evaluating Small Starts. Since many Small Starts are likely to be composed of Transportation System Management (TSM) elements - i.e., they are the "best bus" alternative - a "best bus" Baseline would not be appropriate for these projects. To have a level playing field for the evaluation of all Small Starts, the No Build should be the Baseline for all; and
- permit the use of simplified travel forecasting models, such as elasticity based or pivot point techniques, for all Small Starts, regardless of a project's capital cost. Evaluation measures should be chosen that such models can readily address.
In the Safe, Accountable, Flexible, Efficient Transportation Equity Act - A Legacy for Users (SAFETEA-LU), Congress established three project justification "determinations" for Small Starts - land use, economic development, and cost effectiveness. The reliability of forecasting methods was added as a "consideration." The three "determinations" recognize that Small Starts projects can serve a variety of goals. Some projects will offer mobility benefits, others will help local governments achieve their local land use goals, while others may be part of an economic development strategy. The rating system should recognize this diversity of project goals and should not over-emphasize any one of them and under-emphasize others through weighting or by treating them as risk factors.
APTA does not support either of the optional frameworks offered in section IV(a) of the ANPRM. Both options continue the existing practice of defining cost-effectiveness only in terms of mobility, and further limit consideration to transit mobility. Option 2 does not acknowledge land use as a benefit, but relegates it to a "project uncertainty" indicator. This is inconsistent with the language of SAFETEA-LU which requires FTA to make specific determinations regarding land use and economic development. We urge FTA to broaden its definition of cost-effectiveness to include land use and economic development benefits, as well as mobility benefits accruing to highway users.
Analytical perfection should not be the goal. The rating system needs to be sufficient to identify the most deserving and promising projects. When viewed in this way, the challenges of avoiding double-counting, the differences between transfers and net increases in regional economic terms, and the difficulty of combining dissimilar benefits, are of less concern. A point system, similar to the one proposed in the Transit Cooperative Research Program (TCRP) paper referenced above, could easily serve as a basis for project evaluation that identifies meritorious projects while still guarding against unnecessary or inappropriate risk in the program.
Moreover, FTA should recognize that some project benefits are not quantifiable. Reducing the evaluation process to a series of quantitative measures, weights, and risk factors misses the need for judgment about some factors that are inherently subjective in the evaluation of projects.
In differentiating between land use and economic development, FTA should adopt the suggestion in the enclosed TCRP paper that land use be evaluated in terms of buildings and density while economic development is defined in terms of jobs and sales. A project might contribute to economic development, but not land use, if it fostered increased economic activity within existing buildings, such as condominiums and restaurants in abandoned warehouses.
Also consistent with the TCRP white paper, FTA should evaluate projects by looking for the presence or absence of conditions that (when supported by transit as a catalyst) are conducive to transit usage, a "transit-oriented lifestyle," and development. These should include not only adopted plans and policies, but also market forces, incentives, and agreements (see Tables 1 and 2 in the enclosure for illustrative examples).
Although it is desirable for Small Starts sponsors to make the case for their projects as suggested in section IV of the ANPRM, this does not serve as a substitute for meeting the Small Starts criteria or warrants.
We urge FTA to include a grandfathering provision in the Small Starts rules to accommodate projects that are seeking less than $25 million in Small Starts funding and that at an advanced stage of project development when the final rule is issued. For example, projects that have completed the National Environmental Policy Act (NEPA) process when the rule becomes effective might be permitted to retain their exemption from the New Starts/Small Starts criteria. Otherwise, project sponsors might be required to develop new analytical methods and undertake new analyses after NEPA. This would delay implementation and add to project costs.
Procedures for Planning and Project Development
There are also significant opportunities to simplify and streamline the planning and project development process for Small Starts. We believe that a Small Start should also be a Quick Start, and propose that FTA adopt the following practices:
- consider the use of the NEPA process as meeting the statutory requirement for Alternatives Analysis;
- minimize the requirements for technical documentation and oversight, except as necessary to meet specific statutory requirements. This program should minimize bureaucratic requirements that do not enhance the value of a project or serve a significant need; and
- minimize or drop the requirement for risk assessments. This would recognize the fact that there is inherently less risk, as well as less federal participation, in this program than the New Starts program. FTA should focus its risk assessments on larger projects more likely to benefit from that analysis.
Before and after studies should be optional for Small Starts. As with New Starts, project sponsors should be allowed to use project funds to gather and analyze before and after data, but this should not be required. Again, the goal should be to simplify the requirements.
We agree that many Very Small Starts will likely qualify as Categorical Exclusions (CEs) under NEPA, and are of the opinion that CEs may apply to larger Small Starts as well. We suggest that FTA review the list of CEs in the FTA/FHWA environmental regulations (23 CFR Part 771) with Small Starts types of projects in mind, and update the CE list to include likely Small Starts scenarios. In addition, the NEPA process for many Small Starts is likely to involve an Environmental Assessment (EA) and a Finding of No Significant Impact. Since scoping is not required for CEs and EAs, project sponsors should not be asked to "petition to be exempted from the early scoping requirement".
This program will be most successful if done in a collaborative manner that takes full advantage of the industry's experience. We suggest FTA convene work sessions to draw upon the expertise and experience available across the transit industry as it prepares a draft regulation.
Sincerely,
William Millar
President and CEO
American Public Transportation Association
Enclosure - Transit Cooperative Research Program (TCRP) Quick Response Project J-06/Task 66 Small Starts Justification Criteria
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