E9-3208. Major Capital Investment Projects

AGENCY:

Federal Transit Administration (FTA), DOT.

ACTION:

Notice of proposed rulemaking; withdrawal.

SUMMARY:

This action withdraws a notice of proposed rulemaking (NPRM) concerning major capital investment projects published in the Federal Register on August 3, 2007 (72 FR 43328). FTA has determined that withdrawal of the NPRM is warranted due to an intervening statutory change.

FOR FURTHER INFORMATION CONTACT:

Christopher Van Wyk, Office of Chief Counsel, Federal Transit Administration, 1200 New Jersey Ave., SE., East Building, Fifth Floor, Washington, DC 20590, [phone] or [e-mail].

SUPPLEMENTARY INFORMATION:

Background

On August 10, 2005, President Bush signed the Safe, Accountable, Flexible, and Efficient Transportation Equity Act—A Legacy for Users (SAFETEA-LU). Section 3011 of SAFETEA-LU made a number of changes to 49 U.S.C. 5309, which authorizes the Federal Transit Administration's (FTA) capital investment grant program. SAFETEA-LU also required that FTA issue regulations establishing an evaluation and rating process for the new Small Starts program. To effectuate the statutory changes and comply with the rulemaking requirement, FTA published an advance notice of proposed rulemaking on January 30, 2006 and a notice of proposed rulemaking (NPRM) on August 3, 2007. On June 6, 2008, the SAFETEA-LU Technical Corrections Act of 2008 (122 Stat. 1572) was signed into law, amending 49 U.S.C. 5309 to require that FTA “give comparable, but not necessarily equal, numerical weight to each project justification criteria in calculating the overall project rating” for both New Start and Small Start projects. The revisions to the statute require such a fundamental change in how FTA weighs the several project justification criteria that a new approach to rulemaking for the New Starts and Small Starts program is required. Thus, FTA is publishing this notice to withdraw the NPRM it issued on August 3, 2007.

FTA received numerous written comments in response to the NPRM. The majority of commenters opposed the NPRM, with overwhelmingly negative comment on a number of specific proposals. The following concerns emerged as the most widely held: A regulatory requirement that a project be rated medium on cost-effectiveness in order to obtain a funding recommendation; cost-effectiveness weighted fifty percent of the overall project justification rating; modification of the definition of “fixed guideway” to include High Occupancy Toll (HOT) lanes under certain conditions; consideration given to congestion reduction in evaluating projects; inclusion of weights for evaluation criteria in the regulatory text rather than in policy guidance; the level of simplification for the new Small Starts program; the combination of the evaluation measures for economic development and land use and the weight given to the combined measure; the prohibition on segmenting a New Starts project into several Small Starts projects; and the proposal for the Very Small Starts category of projects.

Today's issue of the Federal Register contains another withdrawal notice by which FTA is also withdrawing the NPRM it issued for the Contractor Performance Incentives for the Capital Investment Program on February 19, 2008 (73 FR 9075).

The Withdrawal

In consideration of the foregoing, the NPRM for FTA Docket No. FTA-2006-25737, as published in the Federal Register on August 3, 2007 (72 FR 43328) is hereby withdrawn.

Issued in Washington, DC, this 10th day of February, 2009.

Matthew J. Welbes,

Acting Deputy Administrator.