TALKIING POINTS FOR THE APTA LEGAL AFFAIRS CONFERENCE I. INTRODUCTION Ladies and Gentleman, I am delighted to be here today to speak on some of FTA Chief Counsel s Office top priorities. There are a number of topics that I would like to cover o the reauthorization of the Federal public transportation assistance program; o the Department of Transportation s safety initiatives, including rail transit safety; o the status and impact of the American Recovery and Reinvestment Act of 2009; and o briefly touch on Title VI matters. II. STATUS OF PUBLIC TRANSPORTATION AUTHORIZATION EFFORTS The current authorization for Federal surface transportation programs SAFETEA-LU, which expired at the end of September 2009, has been extended through February 28, 2010. In the meantime, both Houses continue to work on extensions to SAFETEA-LU beyond that date. In fact, on December 16, 2009, the House passed legislation, which extends SAFETEA- LU until the end of this fiscal year September 30, 2010.. Unlike the House bill, the Senate bill will likely extend SAFETEA-LU a full 18 months through December 31, 2010. If the authorization committees are unable to act by February 28, the Continuing Resolution may once again be extended for another month. Regardless, neither the House s 12 month extension nor the Senate s 18 month extension would align with the President s recommendation to extend the current authorization through March of 2011. FTA believes that additional time is required to seriously hash through the substantial programmatic improvements that need to be addressed in this next authorization including transportation safety, livability, and performance-based investment in addition to determining transportation levels and how to pay for them. 1
Through the Office of the Secretary, the Department of Transportation has kicked off a series of Reauthorization Town Hall meetings. o These listening sessions are held for the purpose of hearing what our stakeholders have to say about the next generation of surface transportation legislation. o The first one was held in New Orleans in December; a second was held in Minneapolis on January 25, and third was held in Los Angeles on February 18. And, what have we learned from these listening sessions and other outreach efforts FTA has engaged in over the past many months? We have learned that it is critical that the next surface transportation authorization bill focus on the following priorities-- o investment in America s economy; o improving surface transportation safety; and o creating more livable and sustainable communities. Regarding investment in America s economy o this Administration would like to see a surface transportation authorization bill that would put people to work and reinvigorate the economy, maintain and improve critical infrastructure, and make sure people have access to jobs and businesses. o For FTA, this is all about improving the reliability of our transit infrastructure making sure that transit assets are in a State of Good Repair. o This is crucial if public transportation systems are to provide safe and reliable service to their daily ridership especially for those older systems that are aging. With regard to improving surface transportation safety. o It has grown increasingly clear that, at least on some rail transit systems, passengers are not adequately protected. o While rail transit is one of our nation s safest forms of transportation, we are starting to see danger signs as a result of the combination of aging transit systems and local cost constraints. 2
o The Secretary has pledged that rail transit safety will be increased that is why the Obama Administration would like to see legislation now that increases protection for passengers in America. The next authorization bill should be geared toward creating more livable and sustainable communities. o Fostering livable communities is a key aspect of President Obama s urban policy agenda and Vice President Biden s Middle Class initiative. o Key Federal transit initiatives supporting sustainability include: improving mobility and accessibility; promoting transit-oriented development (TOD) and joint development; improving housing affordability; and, coordinating land use- transportation planning. In an effort to enhance these very important initiatives, during this period between authorizations, FTA is also aggressively pursuing o livable communities through a cross-departmental partnership with the Department of Housing and Urban Development and Environmental Protection Agency; o improved performance-based assessments for current investments, including a serious re-evaluation of our New Starts program to make it more transparent and faster; and o a new platform of green and energy conservation based investments to align transit with emerging climate change based initiatives; III. HOUSE REAUTHORIZATION BILL So, what are the House and Senate doing substantively with reauthorization? I have been informed that the Senate Banking Committee continues to work on an authorization bill--working through the bill section by section in a thoughtful, deliberative, bipartisan manner. However, House Transportation and Infrastructure Chairman Oberstar presented his blueprint for investment and reform through a Surface Transportation Authorization bill in late June 2009. 3
The purpose of the Oberstar bill is to expand the federal government s commitment to support transit services by significantly increasing the number of people using public transportation systems and creating greater mobility in urban areas. The bill expands the scope of the FTA Metropolitan and Statewide Planning process, which is identical to that of FHWA s. For example-- o it provides for a Transportation Related Greenhouse Gas Emissions Reduction process; o it requires MPO board membership to include a transit operator; and o it requires consultation with the State bicycle and pedestrian coordinator and the State safe-routes-to-schools coordinator. The Oberstar bill also creates an Office of Expedited Project Delivery within FTA to enhance the speed of construction project delivery, particularly for the New Starts program and substantially delayed projects. Major FTA programs in the bill include o an Urban Area Formula Program; o a Rural Area Formula Program; o an Intermodal and Energy Efficient Transit Facilities Discretionary Program; o the New Starts and Small Starts Program; o the Fixed Guideway Modernization Formula; o a Coordinated Access and Mobility Program; and o Transit Research Grants Program. Under the Urban Area Formula Program o areas with a population between 200,000 and 500,000 may use up to 20% of their annual apportionment on operating expenses; o areas between 500,000 and 1,000,000 may use up to 10% of their annual apportionment on operating expenses; and o areas over 1 million in population may use up to 5% of their annual apportionment on operating assistance. 4
o performance measurements would be set; and o state of good repair investment plans would be required. The Rural Area Formula Program would establish new program goals based on o mobility and access; o intermodalism and connectivity; o state of good repair; and o support of intercity bus transportation. The new Intermodal and Energy Efficient Transit Facilities Discretionary Program would o replace the Clean Fuels Grant Program in Section 5308 and the Bus and Bus Facilities program in Section 5309 with a new discretionary program; o allow funds to be used for capital related activities involving an intermodal passenger facility that directly connects transit users to at least one other mode or a public transportation facility that will assist in reducing greenhouse gas emissions; and o provide up to 5.5 percent of total program funds for projects in areas with populations of less than 50,000. The New Starts and Small Starts Program provisions would o increase the threshold for small starts from $75 million to $100 million; o require FTA to issue a regulation to allow streetcars to be considered a categorical exclusion. o prohibit the use of a transportation system user benefit calculation to evaluate any benefit other than mobility; and o prohibit DOT from using any form of cost effectiveness index to judge projects. However, this particular prohibition, if enacted, would be moot. As most of you are probably aware, FTA issued a Dear Colleague letter on January 13, 2010 doing away with the policy to require a cost effectiveness measure of medium or higher in order to recommend a project for New Starts funding. 5
The Fixed Guideway Modernization Program would remain focused on rehabilitating, maintaining and preserving the nation s fixed guideway transportation systems while improving the state of good repair and increasing ridership on these systems. o Although not included in the proposed legislation, we believe Chairman Oberstar would like to see the current 7-tiered formula replaced with a more streamlined formula. A newly established Coordinated Access and Mobility Program is authorized in the bill that would o consolidate the Elderly Individuals and Individuals with Disabilities Program; the Job Access and Reverse Commute Program; and the New Freedom Program; o apportion funds to States and urbanized area based on certain factors and pursuant to a set formula; and o establish performance standards for grant recipients. The Transit Research Grants program o would provide discretionary funds for research, planning, development, demonstration, deployment and training projects, and evaluation of technology of national significance to public transportation; o it sets aside 25 percent of research funds for special demonstration initiatives; o moves the National Fuel Cell Bus Technology Development Program currently under section 5309 to the research; and o does not include any research, training or technical assistance center earmarks. IV. REAUTHORIZATION SUMMARY So, ladies and gentleman, this is where we are in the authorization process. Clearly, there is much work still to be done. o And, this Administration, together with FTA, stands ready to assist both Houses in supporting a bill that will promote investment in America s economy; improve public transportation safety; and create more livable and sustainable communities. 6
V. DOT SAFETY INITIATIVES Revisiting safety I want to reiterate that safety is the Department s number one priority in all areas of transportation and, as a result, there is great interest in curtailing unsafe driving habits. As many of you know, the President signed an Executive Order last year banning Federal employees from texting or talking on a cell phone while driving government vehicles. Last fall, Secretary LaHood sponsored the nation s first summit on distracted driving, where he promised the American people the federal government would do everything in its power to send a clear message that texting, talking, and driving are potentially lethal activities with very serious consequences o To that end, the President s FY 2011 budget requested $50 million for a new Distracted Driver Prevention Program. At FTA, Administrator Peter Rogoff, in the summer of 2009, sent out a Dear Colleague letter to all transit agencies advising them of the Department s initiative to address distracted driving and urging general managers to review their policies on the use of cell phones and other personal electronic devices by public transportation employees. This is only the beginning. Whether the Department s response will take the form of a single regulation covering all modes of transportation or whether FTA will be directed to undertake it own rulemaking is yet to be decided. Regardless, I urge you to talk with your clients about your agency s policies, procedures, and enforcement mechanisms regarding inappropriate cell phone usage and texting. The writing is on the wall. One way or another, the Department will act to curb distracted driving to help make our roads much safer for everyone. VI. RAIL TRANSIT SAFETY Staying on the topic of safety, and I know I mentioned rail transit safety when speaking about reauthorization, but I want to expand upon it just a bit. On December 7, 2009, the Department transmitted to Congress proposed legislation to strengthen FTA s role in transit safety. It was the first time in the Department s history that it had submitted stand-alone legislation for Congress consideration. 7
The frequency of derailments, collisions, and personal injury both to passengers and maintenance workers means Congress must act now to enact the Public Transportation Safety legislation. Even the National Transportation Safety Board recognizes the need for improved safety standards on rail transit. o Just last week, on February 18, the NTSB added rail to its 2010 Federal Most Wanted List of Transportation Safety Improvements. o In doing so, the NTSB focused on the need to improve transit rail car design. The Board explained that a railcar s ability to withstand the dynamic forces of an accident is essential to protecting the vehicle s occupants; and The Board s recent accident investigations have noted that telescoping of transit cars has destroyed or greatly compromised survivable space. Without question, there are innumerable, latent safety issues in the rail transit industry, unidentified and uncorrected, which stand to worsen in the current era of tight budgets, and as transit facilities and equipment continue to age. The Department s proposal will ensure that our transit agencies throughout the nation operate and maintain their infrastructure to a common set of standards that provide passengers with service that is reliable, comfortable, and safe. I am pleased to announce that yesterday congressman Oberstar and Senator Dodd introduced the Administration s proposed Legislation for consideration in both houses of Congress. I will speak about this topic in greater detail at a session later this afternoon if you would like to hear more about the Administration s proposal. VII. AMERICAN RECOVERY AND REINVESTMENT ACT Now, I will up-date you on the impact of the American Recovery and Investment Act as well as FTA s implementation of the public transportation provisions and the Surface Transportation Discretionary Grants program, aptly dubbed the TIGER Grants program, contained in that Act. February 17th was the one-year anniversary of the Recovery Act and we recently learned that our economy grew 5.7 percent in the fourth quarter the largest gain in six years and something many economist say is largely due to the Recovery Act. 8
The Recovery Act has helped to create or sustain jobs by o providing tax relief for American businesses and families; o providing aid to States and small businesses; and o funding construction projects ranging from highway and transit construction to airport improvement projects. While the Recovery Act was never meant to fill a gap of 8 million jobs lost no single government program ever could public and private forecasters ranging from the Council of Economic Advisors to Moody s Economy and IHS Global now say the Recovery Act is responsible for about 2 million jobs nationwide. o And, the non-partisan Congressional Budget Office, which is widely-respected by Members of Congress on both sides of the aisle, says that number could be as high was 2.4 million. We believe the Recovery funds made available for public transportation $8.4 billion created an extraordinary opportunity for public transportation that FTA has executed enthusiastically in partnership with local transit authorities. Currently, FTA has awarded 708 grants totaling $7.23 billion. A total of 208 grants valued at $1.07 billion are undergoing review and pending award for a potential total of 924 grant awards valued at $8.3 billion dollars. FTA estimates, based on the grants that are currently in process, that approximately 4,000 new transit vehicles will be purchased or on order by this September 2010. FTA Recovery Act expenditures have resulted in over 10,000 jobs created or retained. But this isn t over yet. On March 5, 2010, any State, urbanized, or non-urbanized area that has not obligated 100% of their allocated Recovery Act funds will have those funds withdrawn. FTA will then redistribute the withdrawn funds to those areas that were able to obligate 100% of their funds. On the one year anniversary of the Recovery Act, the Department announced a total of $1.5 billion in discretionary TIGER grants for 51 notable and needed transportation capital investments. o Competition for the TIGER grant program was fierce. 9
o The Department could provide funds to fewer than 3 percent of the applicants, who submitted more than $60 billion in applications for this $1.5 billion program. o DOT considered the benefits to safety, economic impact, livability, sustainability, and state of good repair in evaluating the projects. o Priority was given to projects with strong local matches where the TIGER Grant completed the funding for a project with independent utility, which means that the project had benefits without waiting for later (unfunded) sections or segments to be completed. o FTA projects did well in the competitive process, accounting for about one-third of the funding awarded, demonstrating this Administration's commitment to transit. o TIGER awards were made nationwide to outstanding bus rapid transit projects, intermodal facilities and other transit rail investments. But, it is important to remember, if 100 percent of the Recovery funds for the TIGER program and the public transportation formula and discretionary programs have not been obligated by September 30, 2010, those funds will be sent to the U.S. Treasury. o Right now, it looks like most States, urbanized, and non-urbanized areas will be able to obligate their funds, if they have not already done so. It has also been reported that Congress is considering a second jobs bill. This Administration and the Department of Transportation believe a second jobs bill is a good thing because investing in our nation s transportation infrastructure is critical. VIII. TITLE VI Turning to my last topic for this session, I want to briefly mention Title VI compliance. Events over the last few months have raised concerns that transit agencies need to have appropriate policies and procedures in place to enforce and comply with Title VI requirements. This includes ensuring that your transit agency has strong public participation plans in place and that your transit agency follows them. My experience over the last few months have shown that transit agencies with mediocre or little public participation in construction projects and service and fare changes often puts them at risk for litigation. 10
Public involvement should be viewed as a way to strengthen proposals to ensure that projects will have the intended impact on the surrounding community. Also with respect to Title VI, your clients should be aware that each transit agency must have a policy in place for what constitutes a major service change and the agency needs to follow that policy. NEPA/Environmental Justice (EJ) analysis is no substitute for Title VI compliance. o While some of the population studies required for EJ analysis can be helpful for Title VI it is no substitute. Your clients cannot rest on EJ analysis alone. Likewise, Limited English Proficiency or LEP is a requirement under FTA s Title VI Circular. o If your clients haven t implemented an LEP program, please urge them to do so now. FTA will be developing some additional guidance for grantees on this issue shortly. IX. CONCLUSION Finally in conclusion you can see that FTA folks have been extremely busy being engaged in authorization, safety, economic recovery and Title VI compliance efforts, and that is just the tip of iceberg. Despite a dearth of time, however, I and my staff of attorneys at FTA are always available to assist with any questions you or your clients may have regarding the Federal public transportation assistance programs. So, please don t hesitate to contact us. With that being said, are there any questions at the moment? TCC-10/RMM/2/19/2010 11