Legal Handbook for the New Starts Process (2010)

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33 3(a). Attachment 3A—Project Budget Activity.—The project budget is a budget for the entire project setting forth the funding sources and activity timelines associ- ated with each source of funds and may include funding from other non-New Starts federal grants that provide the total amount of FTA funding for the FFGA. 4. Attachment 4—Baseline Schedule The baseline schedule reflects each of the standard cost categories set forth in Attachments 2 and 3—at the beginning of performance, mid-point of performance, and completion. This attachment is not modified during design and construction since it is used to compare planned project implementation to actual performance. 5. Attachment 5—Prior Grants and Related Documents This attachment provides a listing of all prior FTA grants for the project that are not included in the FFGA; a listing of all documents and FTA actions re- lated to the project (e.g., approval to enter PE and Final Design, issuance of the Record of Decision, and issuance of Letters of No Prejudice); and a listing of all FTA grants that are directly incorporated into the overall federal funding of the FFGA and the project. 6. Attachment 6—Schedule of Federal Funds for the Project This attachment provides a year-by-year listing of the anticipated sources and amounts of federal funding for the project and the corresponding sources and amounts of the grantee’s funding for the project. It sets forth the amount of § 5309 New Starts funds FTA in- tends to recommend that Congress appropriate for the project, year-by-year, to fulfill the federal contractual commitment to the project. The attachment also specifi- cally cites the federal statute that authorizes the project for final design and construction, notes whether the baseline schedule extends beyond the current authori- zation of the federal transit program, and states whether FTA intends to provide federal funds for the project in years beyond the authorization existing at the time that the FFGA is executed. 7. Attachment 7—Measures to Mitigate Environmental Impacts This attachment lists the environmental record for the project. The attachment makes reference to any mitigation measures adopted for the project and refer- ences the ability of the grantee to add mitigation meas- ures as necessary. In the past, this attachment would actually include a complete listing of all of the mitiga- tion measures adopted for the project. However, FTA now only requires that the grantee establish a matrix of the measures, including the entity responsible for en- suring compliance with each measure; the attachment only references this matrix. 8. Attachment 8—New Starts “Before and After” Study This attachment documents the grantee’s commit- ment to conduct a “before and after” study to assemble information and conduct analyses to identify the actual performance of the project in terms of its costs and im- pacts, evaluate the reliability of technical methods used during the planning and development of the project, and identify potentially useful improvements to those methods. D. Submission to Congress Before issuing an FFGA, pursuant to federal transit law,140 FTA must provide the Committees on Transpor- tation and Infrastructure and Appropriations of the House of Representatives and the Committees on Bank- ing, Housing and Urban Affairs, and Appropriations of the Senate at least 60 days’ notice in writing of its in- tent to issue such an agreement, and shall include a copy of the FFGA as well as the evaluations and ratings for the project. Before that submission is made to Con- gress, FTA must seek review and approval from the Office of the Secretary of Transportation and the Office of Management and Budget. Note that formal approval by Congress of the FFGA is not required, only that proper notice must be given. A project is considered approved when the time period has expired and Congress has taken no action to the con- trary. In a few rare instances, a congressional commit- tee has written FTA and directed that it not enter into a specific FFGA, resulting in further delays in the FFGA process, but in the majority of cases, FTA is sim- ply able to execute the FFGA as soon as the 60-day pe- riod has run its course. CHAPTER VII: FTA FUNDING RECOMMENDATIONS A. FTA Ratings Chapter II discusses the FTA Project Evaluation and Rating process. The ratings are intended to reflect overall project merit; proposed projects that are rated as either High, Medium-High, or Medium have demon- strated significant potential benefits and are therefore eligible for New Starts funding. B. Ratings Are Not Funding Assurance Note, however, that project ratings do not translate directly into a funding recommendation or commitment in any given year. FTA must also consider the amount of New Starts funding available on an annual basis and the phase of project development of candidate New Starts projects. 140 49 U.S.C. § 5309(g)(5).

34 C. Basis of FTA New Starts Funding Allocation Decisions In its 2008 report to Congress,141 FTA provides that in determining annual funding allocations among pro- posed New Starts and Small Starts, the following gen- eral principles are considered: 1. Project must be authorized; should meet the pro- ject justification, local financial commitment, and proc- ess criteria established by §§ 5309(d) and 5309(e); and be consistent with Executive Order 12893, Principles for Federal Infrastructure Investments, issued January 26, 1994. 2. Existing FFGA commitments should be honored before any additional funding recommendations are made. 3. Upon completion of an FFGA, or PCGA in the case of a Small Starts, the federal funding commitment has been fulfilled. Any additional costs beyond the scope of the federal commitment are the responsibility of the grantee. 4. Firm funding commitments, embodied in FFGAs or PCGAs, will not be made until projects demonstrate that they are ready for such an agreement, i.e., the pro- ject’s development and design has progressed to the point where its scope, costs, benefits, and impacts are considered firm and final. 5. Funding should be provided to the most worthy investments to allow them to proceed through the proc- ess on a reasonable schedule. D. FTA Annual Report on Funding Recommendations By law,142 each year the USDOT submits its Annual Report on Funding Recommendations to the Commit- tees on Transportation and Infrastructure and Appro- priations of the House of Representatives and the Committees on Banking, Housing and Urban Affairs, and Appropriations of the Senate, as part of the Presi- dent’s annual budget submission to Congress in late January or early February. This report contains rec- ommendations for the allocation of funds for the design and construction of fixed guideway New Starts and Small Starts capital investments for the upcoming fiscal budget year. As noted, the report is a collateral docu- ment to the President’s annual budget submission to Congress. It is prepared by FTA, reviewed and ap- proved by USDOT, and reviewed and approved by the Office of Management and Budget before it is submitted to Congress each year. Most significantly, the Annual Report provides pro- posed funding recommendations for the upcoming fiscal year for New Starts projects “in the pipeline”—those with existing FFGAs, projects with pending FFGAs, 141 FED. TRANSIT ADMIN., supra note 65, at B-27 (2008), available at http://www.fta.dot.gov/regional_offices_7753.html. 142 49 U.S.C. § 5309(k). and Small Starts. The report also makes recommenda- tions for funding of Final Design activities for New Starts projects that achieve this status before the de- velopment of the pending fiscal year’s appropriations bill. This allows FTA the flexibility to make timely rec- ommendations somewhat later in the process as Con- gress drafts appropriations legislation and as FTA gets a better sense from its project oversight responsibilities of which projects are ready for Final Design funding. Finally, the report makes funding recommendations for Small Starts projects. FTA has available to fund New Starts projects the amounts authorized in the latest 6-year reauthorization bill. An authorization law authorizes funding and sets federal policy goals. Each year a subsequent appropria- tions law actually funds specific programs to pay for the authorized activity. SAFETEA-LU, for example, author- ized over $9 billion for New Starts funding. In addition, Congress created contingent commitment authority to permit FTA to make commitments beyond the amount in an authorization law subject to future authorization and appropriations law.143 Contingent commitment au- thority essentially is an amount equivalent to the last 3 years of New Starts funding under SAFETEA-LU. Con- sequently, the 6-year funding authorized under SAFETEA-LU for the New Starts program, plus its con- tingent commitment authority, comprise the funding that FTA manages through its New Starts project de- velopment process. August of each year is a key month in the process. It is by then that FTA must have sufficient data and in- formation on a project to be able to make a recommen- dation that a project be funded in the next budget; FTA’s recommendation must be approved internally at USDOT and by the Office of Management and Budget. That next budget will be presented to Congress in Feb- ruary for the fiscal year beginning October 1. If a pro- ject misses this time frame, it may not get funded until the next cycle. There is also a lengthy appendix to each Annual Re- port that provides information on New Starts and Small Starts projects in different stages of development. The report includes the most recent ratings of these projects and notes their progress and any significant changes that have occurred since the last report. Each project’s project development history and current status are de- scribed, as are its project justification and local finan- cial commitment ratings. This is a “snapshot” in time in which FTA is updating Congress on the status of vari- ous projects in the pipeline. Further, before issuing an FFGA, pursuant to fed- eral transit law,144 FTA must provide the House and Senate Committees noted previously at least 60 days’ notice in writing of its intent to issue such an agree- ment, and shall include a copy of the FFGA as well as the evaluations and ratings for the project. Before that submission is made to Congress, FTA must seek review 143 49 U.S.C. § 5309(g)(4). 144 49 U.S.C. § 5309(g)(5).