Notice of Issuance of Final Circular: Guidance on Joint Development, 50728-50733 [2014-20097]
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50728
Federal Register / Vol. 79, No. 164 / Monday, August 25, 2014 / Notices
Dated: August 15, 2014.
Kelly Keiderling,
Principal Deputy Assistant Secretary, Bureau
of Educational and Cultural Affairs,
Department of State.
[FR Doc. 2014–20169 Filed 8–22–14; 8:45 am]
BILLING CODE 4710–05–P
DEPARTMENT OF STATE
[Public Notice: 8846]
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Shipping Coordinating Committee;
Notice of Committee Meeting
The Shipping Coordinating
Committee (SHC) will conduct an open
meeting at 9:30 a.m. on Wednesday,
October 1st, 2014, in Coast Guard
Headquarters, Room 6i10–01–c,
Washington, DC. The primary purpose
of the meeting is to prepare for the sixtyseventh Session of the International
Maritime Organization’s (IMO) Marine
Environment Protection Committee to
be held at the IMO Headquarters, United
Kingdom, October 13–17, 2014.
The agenda items to be considered
include:
• Adoption of the agenda
• Harmful aquatic organisms in ballast
water
• Recycling of ships
• Air pollution and energy efficiency
• Further technical and operational
measures for enhancing energy
efficiency of international shipping
• Reduction of GHG emissions from
ships
• Consideration and adoption of
amendments to mandatory
instruments
• Review of nitrogen and phosphorous
removal standards in the 2012
Guidelines on the implementation of
effluent standards and performance
tests for sewage treatment plants
• Mandatory Code for ships operating
in polar waters
• Identification and protection of
Special Areas and PSSAs
• Inadequacy of reception facilities
• Reports of sub-committees
• Work of other bodies
• Promotion of implementation and
enforcement of MARPOL and related
instruments
• Technical cooperation activities for
the protection of the marine
environment
• Work programme of the Committee
and subsidiary bodies
• Application of the Committees’
Guidelines
• Election of the Chairman and ViceChairman for 2015
• Any other business
• Consideration of the report of the
Committee
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Members of the public may attend
this meeting up to the seating capacity
of the room. Upon request, members of
the public may also participate via
teleconference, up to the capacity of the
teleconference phone line. The access
number for this teleconference line will
be posted online at https://
www.uscg.mil/imo/mepc/default.asp at
least 2 working days in advance.
Physical access to the meeting, or
participation via the teleconference line,
requires that all attendees respond to
the meeting coordinator not later than
September 17, 2014, 10 working days
prior to the meeting. The meeting
coordinator, Mr. John Morris, may be
contacted by email at John.C.Morris@
uscg.mil or by phone at 202–372–1433.
Responses made after September 23,
2014, might result in the requester not
being able to participate in the meeting.
A request for reasonable
accommodation should be made to Mr.
Morris, at the same email address, prior
to September 23. Requests made after
that date might not be possible to fulfill.
Please note that due to security
considerations, two valid, government
issued photo identifications must be
presented to gain entrance to the Coast
Guard Headquarters building. The Coast
Guard Headquarters building is
accessible by public transportation or
taxi. Additional information regarding
this and other IMO SHC public meetings
may be found at: www.uscg.mil/imo.
In case of severe weather or other
emergency in the Washington, DC area,
attendees should check with the Office
of Personnel Management at https://
www.opm.gov or (202) 606–1900 for the
operating status of federal agencies. If
federal agencies are closed, this meeting
will not be rescheduled, but the
Shipping Coordinating Committee will
publish a separate Federal Register
notice to announce an electronic docket
to receive public comments.
Dated: August 12, 2014.
Marc Zlomek,
Executive Secretary, Shipping Coordinating
Committee, Department of State
[FR Doc. 2014–20174 Filed 8–22–14; 8:45 am]
BILLING CODE 4710–09–P
DEPARTMENT OF TRANSPORTATION
Federal Transit Administration
[Docket No. FTA–2013–0013]
Notice of Issuance of Final Circular:
Guidance on Joint Development
Federal Transit Administration
(FTA), DOT.
AGENCY:
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Notice—Issuance of Joint
Development Circular.
ACTION:
The Federal Transit
Administration (FTA) has issued and
placed in the docket and on its Web site
final Agency guidance, in the form of a
circular, on joint development. This
circular provides guidance to recipients
of FTA financial assistance on how to
use FTA funds or FTA-funded real
property, for joint development. This
circular: (1) Defines the term ‘‘joint
development’’; (2) explains how a joint
development project can qualify for
FTA assistance; (3) describes the legal
requirements applicable to the
acquisition, use, and disposition of real
property acquired with FTA assistance;
(4) outlines the most common
crosscutting requirements applicable to
FTA-assisted joint developments; and
(5) describes FTA’s process for
reviewing a joint development project
proposal. This circular incorporates
provisions of the Moving Ahead for
Progress in the 21st Century Act (MAP–
21), Public Law 112–141 (2012),
advances the goals of 49 U.S.C. 5315 by
informing FTA recipients of
opportunities for private sector
participation in public transportation
projects, and includes the most current
guidance for the Federal public
transportation program. This final
circular is the result of the notice issued
by FTA that appeared in the Federal
Register on March 6, 2013, entitled
‘‘Joint Development: Proposed
Circular’’.
DATES: The effective date of the circular
is October 1, 2014. Projects for which
sponsors have executed joint
development agreements with third
parties before October 1, 2014 will be
considered according to FTA’s existing
guidance and statements of policy.
FOR FURTHER INFORMATION CONTACT: For
legal questions, contact Christopher T.
Hall, Office of Chief Counsel, Federal
Transit Administration, 1200 New
Jersey Avenue Southeast, Room E54–
413, Washington, DC 20590–0001. For
policy questions, contact Sharon Pugh,
Office of Budget and Policy, Federal
Transit Administration, 1200 New
Jersey Avenue Southeast, Room E52–
322, Washington, DC 20590–0001. For
program questions, contact the
appropriate FTA Regional Office.
SUPPLEMENTARY INFORMATION: This
notice does not contain a copy of the
final circular. A copy of the final
circular and comments and material
received from the public, as well as any
documents indicated in the preamble as
being available in the docket, are part of
docket number FTA–2013–0013. For
SUMMARY:
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Federal Register / Vol. 79, No. 164 / Monday, August 25, 2014 / Notices
access to the DOT docket, please go to
www.regulations.gov at any time or to
Docket Operations, M–30, U.S.
Department of Transportation, 1200
New Jersey Avenue Southeast, Room
W12–140, Washington, DC 20590–0001
between 9:00 a.m. and 5:00 p.m.,
Monday through Friday, except Federal
holidays. The final circular is also
available on the FTA Web site at https://
www.fta.dot.gov/about/13716.html.
A summary of the final circular
follows. The final circular itself is not
included in this notice; an electronic
version may be found on FTA’s Web site
at www.fta.dot.gov/ or on the Docket at
www.regulations.gov as part of docket
number FTA–2013–0013. Paper copies
of the final circular may be obtained by
contacting FTA’s Administrative
Services Help Desk at (202) 366–4865.
This Notice is organized in the
following sections:
A. Chapter I—Introduction and
Background
Chapter I is an introductory chapter.
It defines terms used throughout the
circular, provides a brief background of
FTA’s authorizing legislation, the effect
of the circular, and instructions for how
to contact FTA.
I. Introduction
II. Chapter Summary
III. Response to Comments Received
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I. Introduction
It is FTA’s policy to maximize the
utility of FTA-assisted projects and to
encourage recipients to generate
program income through joint
development. One of the primary
benefits of joint development is revenue
generation for the transit system, such
as income derived from rental or lease
payments, as well as private-sector
contributions to public infrastructure.
Other benefits include shared costs,
efficient land use, reduced distance
between transportation and other
activities, economic development,
increased transit ridership, and
improved transit connectivity. The
revenue a recipient receives from an
FTA-assisted joint development project
is treated as program income and may
be used towards eligible capital and
operating expenses of providing transit
services.
This final circular is intended to
guide interested parties through the
FTA program and policy requirements
that must be considered when pursuing
a joint development project that is FTAassisted or that will make use of real
property that was previously acquired
with FTA assistance. In the past, FTA
has appended its guidance on joint
development to its circulars 5010.1D,
9030.1D, and 9300.1B, guidance for
Grant Management Requirements,
Urbanized Area Formula Program, and
Capital Investment Program (New/Small
Starts), respectively, and has published
Federal Register Notices of Final
Agency Guidance on the Eligibility of
Joint Development Improvements Under
Federal Transit Law (72 FR 5788, Feb.
7, 2007) and Policy on Transit Joint
Development (62 FR 12266, Mar. 14,
1997). FTA has decided to consolidate
these references into a single circular to
provide guidance to its grantees on how
to use FTA assistance or FTA-assisted
real property for joint development.
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II. Chapter Summary
B. Chapter II—Circular Overview
Chapter II introduces the substance of
the circular. It describes joint
development as a concept and
distinguishes between it and the related
concepts of transit-oriented
development (TOD), pedestrian and
bicycle projects, and public private
partnerships (PPP or P3). It also lists
several elements of a joint development
capital project, including the funding
sources, project eligibility criteria,
crosscutting Federal requirements, and
restrictions on the use of real property
acquired with Federal assistance.
C. Chapter III—FTA Assistance for
Planning and Capital Projects
Chapter III describes the eligibility
requirements for an FTA-assisted joint
development capital project or planning
activity.
FTA planning grants are available to
assist States, metropolitan planning
organizations, local governments, transit
agencies, and others to plan public
transportation projects, including joint
development.
FTA program funds may be used to
support capital projects. MAP–21
provides the most recent authorization
for FTA programs. MAP–21 explicitly
includes joint development within the
definition of capital project. This
circular describes the MAP–21
provisions on joint development, and
explains each element of the statutory
eligibility criteria, all of which must be
satisfied. Chapter III is largely based on
previously published guidance on the
eligibility of joint development
activities for FTA funding (72 FR 5788,
Feb. 7, 2007).
D. Chapter IV—Real Property
Considerations
Chapter IV reviews the requirements
applicable to the acquisition, use, and
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disposition of real property acquired
with FTA assistance. Chapter IV gives
special attention to the circumstances
that are most likely to be part of an FTAassisted joint development project,
including conveyance of real property
for joint development purposes,
protection of the Federal government’s
interest in how the real property is used,
the maintenance of satisfactory
continuing control of real property in
the context of a joint development
project, and the incidental use of real
property for non-transit purposes.
Chapter IV also discusses considerations
for the adaptation and/or reuse of FTAassisted parking facilities for joint
development purposes.
E. Chapter V—Cross-Cutting Federal
Requirements
Chapter V reviews Federal crosscutting requirements that are not unique
to joint development projects, but which
have application to all FTA-assisted
projects, including joint development
projects funded by FTA or using real
property acquired with FTA assistance.
F. Chapter VI—Joint Development
Project Review Process
Chapter VI describes FTA’s process
for reviewing a joint development
project proposal. This chapter
documents and discusses the framework
FTA uses for analyzing a proposed joint
development project, including how it
assesses the four eligibility criteria. The
chapter also discusses how and what
the grantee should submit as a proposal
to FTA for review.
This chapter was not included in the
proposed circular. Rather, FTA stated its
intent to include in the final circular a
chapter on FTA’s review process and
sought stakeholder input on the same in
the notice of availability of the proposed
circular. FTA has considered that
stakeholder input in composing the
final Chapter VI.
III. Response to Comments Received
On March 6, 2013, FTA published in
the Federal Register a Notice of
Availability of Proposed Circular and
Request for Comments (notice of
proposed joint development circular)
(78 FR 14020). In its notice of proposed
joint development circular, FTA stated
its intent to guide interested parties
through the FTA program and policy
requirements that must be considered
when pursuing a joint development
project using FTA assistance or FTAassisted real property. The notice itself
included a chapter summary of the
proposed circular, as the proposed
circular itself was not included in the
notice; instead, information on
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obtaining an electronic version of the
proposed circular was provided.
Twenty-four parties submitted
comments in response to FTA’s March
6, 2013, notice of proposed joint
development circular. FTA hereby
responds to these comments by topic
and in the following order: (a) Notice of
Proposed Circular Generally; (b) Fair
Share of Revenue; and (c) FTA Review
Process.
(a) Notice of Proposed Circular
Generally
The intended purpose of FTA’s notice
of proposed joint development circular
was to provide guidance to recipients of
FTA financial assistance on how to use
FTA funds or FTA-assisted real property
for joint development. The circular: (1)
defined the term ‘‘joint development’’;
(2) explained how a joint development
project can qualify for FTA funding; (3)
described the legal requirements
applicable to the acquisition, use, and
disposition of FTA-assisted real
property; and (4) outlined the most
common crosscutting Federal
requirements.
FTA received twenty-one general
comments covering a wide range of
subjects, including affordable housing,
applicability, car sharing, eligibility
criteria, FTA policy, program income,
real property, TOD, and value capture.
Several commenters addressed multiple
and overlapping subjects within the
general category. Most commenters
requested clarification of subjects
discussed or specific terminology used
in the circular. Across the board,
commenters were receptive to FTA
providing consolidated and
comprehensive guidance concerning
joint development.
Seventeen commenters addressed
concerns regarding real property,
including disposition, incidental use,
mandatory contractual provisions,
parking, satisfactory continuing control,
shared use, subordination, and transfers.
Thirteen commenters sought
clarification on application of the
eligibility criteria, and distinguishing
between activities eligible for FTA
assistance as joint development and
other capital transit projects. Ten
commenters asked FTA to clarify
application of the guidance concerning
non-FTA-assisted property, joint
development application to all modes of
public transportation rather than just to
rail, and application of the ‘‘originally
authorized purpose’’. Six commenters
questioned the focus of FTA’s stated
joint development policy. Six
commenters addressed FTA’s stated
position on the concept of value
capture. Five commenters asked FTA to
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explicitly designate affordable housing
development as a type of joint
development, commensurate to the
recognition given in the Capital
Investment Program (New/Small Starts).
Three commenters sought clarification
on program income. Two commenters
addressed distinguishing between FTA’s
usage of the terms joint development
and TOD and the usage employed by the
transit industry. One commenter
requested FTA to provide specific
categorical exclusions for joint
development under the National
Environmental Policy Act (NEPA).
Another commenter requested FTA to
consider car-sharing as a transit mode
eligible for joint development. One
commenter requested requiring more
safety training for commercial drivers.
FTA Response: FTA is pleased by the
positive and supportive responses
provided by the majority of commenters
to its proposed circular. The questions
and comments received identified
several topics for which FTA has
provided additional clarification in the
final circular. Some comments,
however, addressed subjects that are
beyond the scope of this circular, but
will be useful in development of FTA
programs and guidance in the future.
This circular consolidates all of the
existing FTA guidance on joint
development, and supersedes any FTA
guidance on joint development
contained in other sources. Thus, this
circular supersedes, in their entirety,
discrete previously issued guidance on
joint development, including FTA’s
2007 guidance and 1997 policy
described above. This circular does not
supersede in entirety any existing FTA
circulars that include guidance on joint
development, but rather only
supersedes the specific joint
development guidance contained
therein. Affected circulars will be
amended according to their regular
update cycles.
Joint development may be undertaken
in conjunction with any mode of public
transportation, e.g., bus, bus rapid
transit, transit malls, light rail, heavy
rail, commuter rail, or ferry. Federal
transit law explicitly includes stations
and terminals used by intercity bus and
intercity passenger rail systems, except
that provided by Amtrak, for joint
development eligibility. Car sharing
services, even if located in close
proximity to a transit facility, are not
considered to be public transportation
as they are not open to the general
public or a segment of the general
public defined by age, disability, or low
income.
Joint development is an eligible
capital transit project by statute, and is
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considered to be within the scope of all
capital grants unless expressly
prohibited by a specific term or
condition of the grant. Under the terms
of FTA’s Master Agreement, joint
development is considered an
‘‘originally authorized purpose’’ of prior
grants made for real property
acquisition.
The terms ‘‘joint development’’ and
‘‘transit-oriented development’’ (TOD)
are often used interchangeably within
the transit industry. Whereas FTA
distinguishes between them, FTA
recognizes that some recipients consider
TOD as joint development and vice
versa. FTA considers a transit operator
to be a direct partner or participant in
joint development projects. While a
transit operator may be a stakeholder in
TOD, FTA considers TOD to have a
broader, community-sized scope. This
circular is not applicable to all joint
development projects undertaken by
FTA grantees. This circular applies only
to joint development projects that use
either FTA-assisted real property or
FTA funds in the joint development
project itself, and, therefore, have a
Federal interest. FTA realizes that its
grantees may undertake transit-oriented
development or joint development
without any Federal interest. This final
circular does not apply to such projects.
FTA reserves further discussion on TOD
for a future document.
FTA’s policy is to maximize the
utility of FTA-assisted projects and to
encourage the generation of program
income through joint development.
Benefits of joint development primarily
include revenue generation for transit,
as well as efficient land use, economic
development, increased transit
ridership, shared project costs, and
improved transit connectivity. The
siting and development of transit
service adds to property values near
transit stations, and that colocation of
residential, commercial, and retail
establishments with the transit system
enhances social and economic returns
for the community. FTA’s treatment of
joint development revenues as program
income enables a grantee to apply such
revenues to the operating or capital
costs of the transit system. Therefore,
joint development projects should be
planned and undertaken to generate
revenue for the transit system from the
added value it creates, and project
sponsors should negotiate project
benefits, whenever possible, on the
basis of the value added to the property
by the joint development. Joint
development is among the value capture
strategies most commonly used to fund
and/or finance transit, although other
value capture strategies are also utilized.
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Although joint development is
intended to realize value capture from
transit, FTA acknowledges that many
transit agencies have incorporated
affordable housing goals into their joint
development policies. FTA does not
wish to interfere with local policy goals
relative to joint development.
Accordingly, FTA does not designate
the types of joint development projects
that a grantee may undertake or give
preference to any particular types of
joint development projects.
Section 5302(3)(G) of title 49, United
States Code, establishes the following
criteria for determining whether a joint
development improvement is eligible as
an FTA-assisted project under Federal
transit law. An eligible joint
development project must: (1) Either
enhance economic development or
incorporate private investments, such as
commercial and residential
development; (2) either enhance the
effectiveness of public transportation
and be related physically or functionally
to public transportation, or establish
new or enhanced coordination between
public transportation and other
transportation; (3) provide a fair share of
revenue that will be used for public
transportation; and (4) provide that a
person occupying space in a joint
development facility shall pay a fair
share of the costs of the facility through
rental payments or other means. No new
criteria have been established, although
this final circular imposes constraints
on the fair share of revenue criterion.
All four criteria must be satisfied for a
joint development project to be eligible
for FTA assistance. The final circular
provides additional information
concerning satisfying these criteria.
Grantees often undertake joint
development, not as an FTA-assisted
activity, but as an incidental use of
property that was previously acquired
using FTA assistance. FTA-assisted real
property may be used for joint
development provided that the joint
development is compatible with the
approved purposes of the property and
the recipient will retain satisfactory
continuing control of the property to
ensure that the Federal interest is
protected and the property continues to
serve its transit purpose. FTA must
concur in any incidental uses of FTAassisted property.
Interests in real property that was
acquired with FTA assistance may be
conveyed or encumbered for the
purpose of joint development. The final
circular provides additional discussion
of satisfactory continuing control and
mechanisms for preserving the use of
FTA-assisted real property for its transit
purpose. The final circular also clarifies
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the mandatory contractual provisions
necessary to protect the Federal interest
when FTA-assisted real property is
conveyed to a third party for the
purpose of joint development.
The final circular provides additional
information to clearly distinguish
between a conveyance of real property
for the purpose of joint development
and the disposition of excess real
property no longer needed for transit
purposes. Once FTA-assisted real
property is disposed of, the Federal
interest in the property is extinguished,
and that property may not be used in an
FTA-assisted joint development project.
In contrast, FTA retains an interest in
the use of real property that has been
conveyed for the purpose of joint
development. Additionally, the final
circular clarifies the distinction between
incidental use and shared use, and
considerations for the modification of
FTA-assisted parking facilities for joint
development purposes.
FTA does not provide a specific
funding program for joint development.
Rather, joint development is considered
a kind of capital project and may be
funded by most FTA capital programs.
Because the joint development project
may take a variety of forms and be
funded by multiple programs, the
applicable Federal requirements will
vary. Requirements of the specific FTA
funding program used must be adhered
to for FTA-assisted joint development.
NEPA categorical exclusions are a
category of actions that, based on past
experience with similar actions, do not
individually or cumulatively have a
significant effect on the environment.
FTA’s categorical exclusions are set out
at 23 CFR 771.118(c). The exclusion at
23 CFR 771.118(c)(10) is often referred
to as the joint development exclusion
and most FTA-assisted joint
development projects should qualify
under this exclusion. However, even
actions that would normally be
classified as categorically excluded may
require environmental review under
certain circumstances, and a project
sponsor should work with its FTA
regional office to determine what level
of environmental review is required for
a project.
The comment regarding commercial
driver’s licenses is beyond the scope of
this circular.
(b) Fair Share of Revenue
In the notice of availability of the
proposed joint development circular,
FTA invited comments specifically
concerning the ‘‘fair share of revenue’’
criterion. FTA did not expressly define
the term ‘‘fair share of revenue’’ or set
a monetary threshold for the same.
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Instead, FTA proposed to reserve the
right to decline funding for a joint
development project if the project
would not generate a meaningful
amount of revenue. FTA sought
comment on how it should assess
whether a project will generate a ‘‘fair
share of revenue,’’ including any
measures or criteria FTA should use.
FTA received sixteen comments, most
of which were opposed to FTA’s
proposal. Of particular concern was the
change in policy regarding FTA’s
deference to grantee decisions
concerning the fair share of revenue
determination and FTA’s right to
decline funding for the joint
development if a meaningful amount of
revenue is not generated, expressed by
ten commenters. Another major
concern, raised by ten commenters, was
the lack of consideration for all benefits
that accrue to transit from a joint
development project, beyond solely the
revenue generated by the joint
development. Additional concerns
raised regarded FTA’s proposal not to
treat increased fare box receipts
attributable to the joint development as
‘‘revenue’’ for purposes of the ‘‘fair
share of revenue’’ criterion. Further,
FTA’s refusal to include fare box
receipts as ‘‘revenue’’ for this criterion
was considered as a barrier to
partnerships in joint development and
other transit infrastructure development
given the constrained financial
environment in which local match
requirements are made.
A few commenters suggested that
FTA should adopt standards, provide
financial criteria, and establish
parameters and required documentation
for fair share of revenue determinations.
Some commenters recommended use of
a cost-benefit analysis or a ratio of
transit share relative to project revenues,
including careful examination of market
conditions, in determining a fair share
of revenue. While no comments
proffered definitions for either ‘‘fair
share of revenue’’ or ‘‘meaningful,’’
several commenters requested that FTA
define these terms. One commenter
endorsed FTA’s proposal, noting that
FTA should consider maximizing
competition and ensuring a high returnon-investment in capturing the value of
transit improvements, and should
actually determine the fair share of
revenue for projects at the Federal level.
FTA Response: The fair share of
revenue criterion is not new for joint
development. Historically, FTA has
taken the position that questions, such
as what is a fair share, and what form
it should take, would be negotiated
between the parties involved in the joint
development. FTA’s 2007 guidance on
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joint development emphasized
deference to the decisions of the project
sponsor, negotiating and contracting at
arm’s length with third parties, to
determine what constitutes a fair share
of revenue. However, constraints on the
availability of transit funding at all
levels of government mandate that
transit systems take advantage of
innovative funding strategies, including
value capture. Accordingly, FTA seeks
to ensure that recipients are fairly
remunerated for the use of FTA
assistance for joint development
projects. The final circular establishes as
a minimum threshold for the amount of
revenue that a recipient cumulatively
receives from a joint development
project the amount of the original
Federal investment in the joint
development project. This is a
minimum threshold for revenues
received from an FTA-assisted joint
development project; it is anticipated
that grantees will generally negotiate at
a higher level the amount of revenue
they will receive from the joint
development.
There is no ‘‘one-size-fits-all’’ fair
share of revenue determination, just as
there is no ‘‘one-size-fits all’’ joint
development project. Inherent to the
negotiating process are considerations
for the type of project to be undertaken
and priorities that the transit agency and
local government seek to advance
through the joint development project.
Beyond the minimum threshold
described above, the fair share of
revenue should reflect the respective
goals and priorities of the parties
involved in the joint development.
While it is possible to project the
potential revenue production from a
joint development project, it is difficult,
from an economic perspective, for FTA
to determine the precise share any party
should receive. This is due to many
factors that are difficult to quantify,
such as market power, local
development priorities (social,
economic, or a mix of both),
agglomeration effects, and other
influences.
In determining the fair share of
revenue it should receive, the project
sponsor must rely on market analyses
and other due diligence examinations.
Although it is reasonable to presume
that these types of efforts are standard
practice on the part of grantees, the final
circular makes conduct of such analyses
a requirement. Appended to the final
circular are documentation to be
completed by the grantee in identifying
pertinent project financial information
and certifying conduct of the required
due diligence.
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17:31 Aug 22, 2014
Jkt 232001
Some commenters proposed that FTA
should consider a joint development
project’s non-revenue benefits to transit
in addition to the potential for revenue
generation. FTA does consider such
benefits to transit under the second
criterion. The second criterion concerns
overall benefits to transit provided by
the joint development, including
enhanced effectiveness and enhanced
intermodal transportation. FTA also
gives consideration for increased fare
box receipts generated as a result of the
joint development under this transit
benefit criterion rather than under the
fair share of revenue criterion. To be
eligible for FTA’s participation, a joint
development must satisfy each of the
statutory criteria, and while nonrevenue benefits to transit are
considered, they cannot satisfy the
statutory requirement for a fair share of
revenue.
(c) FTA Review Process
The proposed circular did not include
a chapter on the process FTA will
follow to review and approve a
proposed joint development project.
FTA sought comments for consideration
in preparing the chapter for inclusion in
the final circular.
Eleven commenters submitted to the
docket on the FTA review process. Six
commenters requested FTA to modify
the current checklist approach to grant
automatic approval if there is indication
that the criteria will be satisfied. Five
commenters recommended that FTA
establish a mechanism to modify joint
development agreements throughout the
grantee’s negotiations with developers
to reflect changes. Five commenters
raised concerns of the timeliness and
consistency of FTA reviews across its
regions, and requested that the process
be clear, simple and flexible, and
include graphics. One commenter
requested FTA to coordinate its review
with the U.S. Department of Housing
and Urban Development for projects
incorporating affordable housing.
Another commenter asked that FTA
provide examples of approved projects
and their associated financial
information. One commenter requested
that FTA make the new chapter
available for public comment.
FTA Response: The majority of
commenters acknowledge the ease of
using the current Joint Development
Checklist for submitting joint
development proposals for FTA review.
As a checklist, it is a rote exercise by the
grantee to indicate that statutory criteria
have been met. It is, therefore,
understandable that FTA should be
asked to provide automatic approval
when the grantee has indicated meeting
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Fmt 4703
Sfmt 4703
all of the criteria, with the grantee
retaining supporting documentation
should FTA request it. Because it is
merely a checklist, however, it provides
limited information to FTA on the
substance and design of the project.
Therefore, FTA has broadened the
checklist, including some parameters, to
identify pertinent information about the
proposed joint development project.
The new document, Joint Development
Project Request Form, is intended to
facilitate discussion between the grantee
and FTA concerning the joint
development proposal by reflecting
those considerations that the grantee
and its partners may find most useful
during the project development process.
Additionally, this form requires the
grantee to identify documentation used
to justify its submission.
FTA recognizes that joint
development negotiations require
considerable exchanges and
deliberations between parties, and that
development of the joint development
agreement undergoes a rigorous process.
Adding to this difficulty is the
imposition of certain Federal
requirements on the grantee’s joint
development partners. To account for
changing circumstances over the course
of the project’s development, FTA has
established a tiered approach to
reviewing joint development proposals.
Project sponsors may, and are strongly
encouraged to, submit a preliminary
proposal for FTA review to frame how
eligibility criteria may be satisfied
relative to specific elements of the
proposed joint development, and to
identify explicit terms and conditions to
which the joint development partners
must agree.
The final circular provides additional
guidance to all stakeholders to consider
for a joint development proposal. A
primary objective of the circular is to
clarify FTA joint development
requirements and their compliance.
Accordingly, it is FTA’s expectation that
the circular will improve the efficiency
of the grantee’s submission and of FTA’s
review.
Joint development is frequently used
to provide or retain affordable housing
in local communities. As such, it
promotes community livability and
sustainability by providing
transportation options for those served
by the transit system. FTA has been an
active participant in the
Administration’s Partnership for
Sustainable Communities, and
continues to strive to overcome barriers
imposed by Federal requirements. To
the extent appropriate, FTA will
coordinate joint development with
E:\FR\FM\25AUN1.SGM
25AUN1
Federal Register / Vol. 79, No. 164 / Monday, August 25, 2014 / Notices
Federal housing programs to achieve
procedural efficiencies.
FTA sought examples of joint
development projects that illustrate the
many issues that are encountered; none
were received. While FTA cannot
include actual projects in its guidance,
it does provide illustrative examples of
specific elements of joint development
projects in the final circular.
Therese W. McMillan,
Acting Administrator.
[FR Doc. 2014–20097 Filed 8–22–14; 8:45 am]
BILLING CODE 4910–57–P
DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety
Administration
[Docket No. NHTSA–2012–0166; Notice 2]
Mercedes-Benz USA, LLC and Daimler
AG, Denial of Petition for Decision of
Inconsequential Noncompliance
National Highway Traffic
Safety Administration, DOT.
ACTION: Notice of petition denial.
AGENCY:
Mercedes-Benz USA, LLC
(MBUSA) on behalf of itself and its
parent company Daimler AG (DAG), has
determined that certain model year
(MY) 2013 Mercedes-Benz GLK-Class
(X204 platform) multipurpose passenger
vehicles (MPVs), do not fully comply
with paragraph S5.1.1.6 1 of Federal
Motor Vehicle Safety Standards
(FMVSS) No. 108, Lamps, Reflective
Devices, and Associated Equipment.
MBUSA filed an appropriate report
dated October 9, 2012 pursuant to 49
CFR Part 573 Defect and
Noncompliance Responsibility and
Reports. MBUSA then filed a petition
for exemption from the notification and
remedy requirements of 49 U.S.C. 30118
on the basis that the defect is
inconsequential to motor vehicle safety.
We are denying this petition because we
believe that the noncompliant parking
lamp is not inconsequential to motor
vehicles safety.
ADDRESSES: For further information on
this decision contact Mike Cole, Office
of Vehicle Safety Compliance, the
National Highway Traffic Safety
Administration (NHTSA), telephone
(202) 366–2334, facsimile (202) 366–
5930.
emcdonald on DSK67QTVN1PROD with NOTICES
SUMMARY:
SUPPLEMENTARY INFORMATION:
I. MBUSA’s petition: Pursuant to 49
U.S.C. 30118(d) and 30120(h) and the
rule implementing those provisions at
1 As published in the 2011 version of 49 CFR
571.108.
VerDate Mar<15>2010
17:31 Aug 22, 2014
Jkt 232001
49 CFR Part 556, MBUSA has petitioned
for an exemption from the notification
and remedy requirements of 49 U.S.C.
Chapter 301 on the basis that this
noncompliance is inconsequential to
motor vehicle safety.
Notice of receipt of the petition was
published, with a 30-day public
comment period, on August 9, 2013, in
the Federal Register (78 FR 448769). No
comments were received. To view the
petition and all supporting documents
log onto the Federal Docket
Management System (FDMS) Web site
at: https://www.regulations.gov/. Then
follow the online search instructions to
locate docket number ‘‘NHTSA–2012–
0166.’’
II. Vehicles involved: Affected are
approximately 2,951 MY 2013
Mercedes-Benz GLK-Class (X204
platform) MPVs manufactured from
January 1, 2012 through August 15,
2012.
III. Noncompliance: MBUSA explains
that the subject vehicles contain parking
lamps that exceed the maximum
designated candlepower output level
provided in FMVSS No. 108 paragraph
S5.1.1.6; id. Figure 1b (listing maximum
candlepower value of 125 cd for parking
lamps). Due to a programming issue in
the electronic control unit, the voltage
in the parking lamp circuit is 12.8 volts
which is higher than the design voltage
specification of 7 volts in the affected
vehicles. This higher voltage causes the
lamps to exceed the maximum value
listed in FMVSS No. 108.
IV. Rule Text: Paragraph S5.1.1.6 of
FMVSS No. 108 requires in pertinent
part:
S5.1.1.6 Instead of the photometric values
specified in Table 1 of SAE Standards J222
December 1970, or J585e September 1977, a
parking lamp or tail lamp, respectively, shall
meet the minimum percentage specified in
Figure 1a of the corresponding minimum
allowable value specified in Figure 1b. The
maximum candlepower output of a parking
lamp shall not exceed that prescribed in
Figure 1b, or of a taillamp, that prescribed in
Figure 1b at H or above. If the sum of the
percentages of the minimum candlepower
measured at the test points is not less than
that specified for each group listed in Figure
1c, a parking lamp or taillamp is not required
to meet the minimum photometric value at
each test point specified in SAE Standards
J222 or J585e respectively.
V. Summary of MBUSA’s Analyses:
MBUSA stated its belief that the subject
noncompliance is inconsequential to
motor vehicle safety for the following
reasons:
Although the parking lamps in the
subject vehicles exceed the candlepower
limits of FMVSS No. 108, the level of
brightness of the lamps is very low. As
explained below, to evaluate the impact
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Frm 00120
Fmt 4703
Sfmt 4703
50733
on motor vehicle safety in actual use,
MBUSA analyzed the brightness of the
lamps in use and has confirmed that the
potential exceedance is minimal, and
below the level perceptible to the
human eye during night-time driving
operations which would be pertinent to
determining potential safety relevance.
MBUSA claims that the agency
should consider how the noncompliance affects how drivers perceive
the lower beam headlamp and the
parking lamp together at night because
FMVSS No. 108 requires both lamps to
be illuminated at the same time. As
noted above, the output limit for
parking lamps is 125 cd. The maximum
output value for lower beam headlamps
is 1,000 cd at 0.5U—1.5L to L test points
(0.5 degrees up from the H-point and
from 1.5 degrees left of the vertical
centerline to the end of the leftward
measurements) and 700 cd for 1 U—
1.5L to L test points (1 degree up from
the H-point and from 1.5 degrees left of
the vertical centerline to the end of the
leftward measurements). See FMVSS
No. 108 paragraph S7.7; id. Figure 17–
2 (photometric test point values for
lower beams). Thus, the maximum
output for the combined parking lamp
and lower beam headlamp is 1,125 cd
(125 cd + 1,000 cd) for the 0.5U test
points and 825 cd (125 cd + 700 cd) for
the 1U test points.
MBUSA measured the output of the
combined parking lamp and lower beam
headlamp on the subject vehicles using
two different headlamp samples. Two
samples were used to evaluate the
impact of normal part to part production
variations on light output. In order to
provide a complete overview of the
brightness of the lights, measurements
were done every 10 cm on the two
horizontal lines at 0.5U and 1U, from 20
to 100 cm from the vertical centerline to
the left, measured at a distance of 25
meters. (This is the same method used
for certification testing for lower beam
headlamps.)
With the first sample headlamp, all
candlepower measurements were below
1,125 cd (for the 0.5U test points) and
below 825 cd (for the 1U test points).
Thus, for this headlamp, there were no
exceedances of the combined brightness
standard. For the second headlamp, the
candlepower measurements were below
1,125 cd at all measurements for the
0.5U test points, and below 825 cd for
half of the 1U test point measurements.
The candlepower measurement was
slightly above 825 cd (840–920 cd) for
five of the 1U test point measurements
with the second headlight. Thus, even
the maximum measurement of 920 cd
for the worst-case measurement location
is only 11% above the reference value
E:\FR\FM\25AUN1.SGM
25AUN1
]]>Agencies
[Federal Register Volume 79, Number 164 (Monday, August 25, 2014)]
[Notices]
[Pages 50728-50733]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-20097]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Transit Administration
[Docket No. FTA-2013-0013]
Notice of Issuance of Final Circular: Guidance on Joint
Development
AGENCY: Federal Transit Administration (FTA), DOT.
ACTION: Notice--Issuance of Joint Development Circular.
-----------------------------------------------------------------------
SUMMARY: The Federal Transit Administration (FTA) has issued and placed
in the docket and on its Web site final Agency guidance, in the form of
a circular, on joint development. This circular provides guidance to
recipients of FTA financial assistance on how to use FTA funds or FTA-
funded real property, for joint development. This circular: (1) Defines
the term ``joint development''; (2) explains how a joint development
project can qualify for FTA assistance; (3) describes the legal
requirements applicable to the acquisition, use, and disposition of
real property acquired with FTA assistance; (4) outlines the most
common crosscutting requirements applicable to FTA-assisted joint
developments; and (5) describes FTA's process for reviewing a joint
development project proposal. This circular incorporates provisions of
the Moving Ahead for Progress in the 21st Century Act (MAP-21), Public
Law 112-141 (2012), advances the goals of 49 U.S.C. 5315 by informing
FTA recipients of opportunities for private sector participation in
public transportation projects, and includes the most current guidance
for the Federal public transportation program. This final circular is
the result of the notice issued by FTA that appeared in the Federal
Register on March 6, 2013, entitled ``Joint Development: Proposed
Circular''.
DATES: The effective date of the circular is October 1, 2014. Projects
for which sponsors have executed joint development agreements with
third parties before October 1, 2014 will be considered according to
FTA's existing guidance and statements of policy.
FOR FURTHER INFORMATION CONTACT: For legal questions, contact
Christopher T. Hall, Office of Chief Counsel, Federal Transit
Administration, 1200 New Jersey Avenue Southeast, Room E54-413,
Washington, DC 20590-0001. For policy questions, contact Sharon Pugh,
Office of Budget and Policy, Federal Transit Administration, 1200 New
Jersey Avenue Southeast, Room E52-322, Washington, DC 20590-0001. For
program questions, contact the appropriate FTA Regional Office.
SUPPLEMENTARY INFORMATION: This notice does not contain a copy of the
final circular. A copy of the final circular and comments and material
received from the public, as well as any documents indicated in the
preamble as being available in the docket, are part of docket number
FTA-2013-0013. For
[[Page 50729]]
access to the DOT docket, please go to www.regulations.gov at any time
or to Docket Operations, M-30, U.S. Department of Transportation, 1200
New Jersey Avenue Southeast, Room W12-140, Washington, DC 20590-0001
between 9:00 a.m. and 5:00 p.m., Monday through Friday, except Federal
holidays. The final circular is also available on the FTA Web site at
https://www.fta.dot.gov/about/13716.html.
This Notice is organized in the following sections:
I. Introduction
II. Chapter Summary
III. Response to Comments Received
I. Introduction
It is FTA's policy to maximize the utility of FTA-assisted projects
and to encourage recipients to generate program income through joint
development. One of the primary benefits of joint development is
revenue generation for the transit system, such as income derived from
rental or lease payments, as well as private-sector contributions to
public infrastructure. Other benefits include shared costs, efficient
land use, reduced distance between transportation and other activities,
economic development, increased transit ridership, and improved transit
connectivity. The revenue a recipient receives from an FTA-assisted
joint development project is treated as program income and may be used
towards eligible capital and operating expenses of providing transit
services.
This final circular is intended to guide interested parties through
the FTA program and policy requirements that must be considered when
pursuing a joint development project that is FTA-assisted or that will
make use of real property that was previously acquired with FTA
assistance. In the past, FTA has appended its guidance on joint
development to its circulars 5010.1D, 9030.1D, and 9300.1B, guidance
for Grant Management Requirements, Urbanized Area Formula Program, and
Capital Investment Program (New/Small Starts), respectively, and has
published Federal Register Notices of Final Agency Guidance on the
Eligibility of Joint Development Improvements Under Federal Transit Law
(72 FR 5788, Feb. 7, 2007) and Policy on Transit Joint Development (62
FR 12266, Mar. 14, 1997). FTA has decided to consolidate these
references into a single circular to provide guidance to its grantees
on how to use FTA assistance or FTA-assisted real property for joint
development.
A summary of the final circular follows. The final circular itself
is not included in this notice; an electronic version may be found on
FTA's Web site at www.fta.dot.gov/ or on the Docket at
www.regulations.gov as part of docket number FTA-2013-0013. Paper
copies of the final circular may be obtained by contacting FTA's
Administrative Services Help Desk at (202) 366-4865.
II. Chapter Summary
A. Chapter I--Introduction and Background
Chapter I is an introductory chapter. It defines terms used
throughout the circular, provides a brief background of FTA's
authorizing legislation, the effect of the circular, and instructions
for how to contact FTA.
B. Chapter II--Circular Overview
Chapter II introduces the substance of the circular. It describes
joint development as a concept and distinguishes between it and the
related concepts of transit-oriented development (TOD), pedestrian and
bicycle projects, and public private partnerships (PPP or P3). It also
lists several elements of a joint development capital project,
including the funding sources, project eligibility criteria,
crosscutting Federal requirements, and restrictions on the use of real
property acquired with Federal assistance.
C. Chapter III--FTA Assistance for Planning and Capital Projects
Chapter III describes the eligibility requirements for an FTA-
assisted joint development capital project or planning activity.
FTA planning grants are available to assist States, metropolitan
planning organizations, local governments, transit agencies, and others
to plan public transportation projects, including joint development.
FTA program funds may be used to support capital projects. MAP-21
provides the most recent authorization for FTA programs. MAP-21
explicitly includes joint development within the definition of capital
project. This circular describes the MAP-21 provisions on joint
development, and explains each element of the statutory eligibility
criteria, all of which must be satisfied. Chapter III is largely based
on previously published guidance on the eligibility of joint
development activities for FTA funding (72 FR 5788, Feb. 7, 2007).
D. Chapter IV--Real Property Considerations
Chapter IV reviews the requirements applicable to the acquisition,
use, and disposition of real property acquired with FTA assistance.
Chapter IV gives special attention to the circumstances that are most
likely to be part of an FTA-assisted joint development project,
including conveyance of real property for joint development purposes,
protection of the Federal government's interest in how the real
property is used, the maintenance of satisfactory continuing control of
real property in the context of a joint development project, and the
incidental use of real property for non-transit purposes. Chapter IV
also discusses considerations for the adaptation and/or reuse of FTA-
assisted parking facilities for joint development purposes.
E. Chapter V--Cross-Cutting Federal Requirements
Chapter V reviews Federal cross-cutting requirements that are not
unique to joint development projects, but which have application to all
FTA-assisted projects, including joint development projects funded by
FTA or using real property acquired with FTA assistance.
F. Chapter VI--Joint Development Project Review Process
Chapter VI describes FTA's process for reviewing a joint
development project proposal. This chapter documents and discusses the
framework FTA uses for analyzing a proposed joint development project,
including how it assesses the four eligibility criteria. The chapter
also discusses how and what the grantee should submit as a proposal to
FTA for review.
This chapter was not included in the proposed circular. Rather, FTA
stated its intent to include in the final circular a chapter on FTA's
review process and sought stakeholder input on the same in the notice
of availability of the proposed circular. FTA has considered that
stakeholder input in composing the final Chapter VI.
III. Response to Comments Received
On March 6, 2013, FTA published in the Federal Register a Notice of
Availability of Proposed Circular and Request for Comments (notice of
proposed joint development circular) (78 FR 14020). In its notice of
proposed joint development circular, FTA stated its intent to guide
interested parties through the FTA program and policy requirements that
must be considered when pursuing a joint development project using FTA
assistance or FTA-assisted real property. The notice itself included a
chapter summary of the proposed circular, as the proposed circular
itself was not included in the notice; instead, information on
[[Page 50730]]
obtaining an electronic version of the proposed circular was provided.
Twenty-four parties submitted comments in response to FTA's March
6, 2013, notice of proposed joint development circular. FTA hereby
responds to these comments by topic and in the following order: (a)
Notice of Proposed Circular Generally; (b) Fair Share of Revenue; and
(c) FTA Review Process.
(a) Notice of Proposed Circular Generally
The intended purpose of FTA's notice of proposed joint development
circular was to provide guidance to recipients of FTA financial
assistance on how to use FTA funds or FTA-assisted real property for
joint development. The circular: (1) defined the term ``joint
development''; (2) explained how a joint development project can
qualify for FTA funding; (3) described the legal requirements
applicable to the acquisition, use, and disposition of FTA-assisted
real property; and (4) outlined the most common crosscutting Federal
requirements.
FTA received twenty-one general comments covering a wide range of
subjects, including affordable housing, applicability, car sharing,
eligibility criteria, FTA policy, program income, real property, TOD,
and value capture. Several commenters addressed multiple and
overlapping subjects within the general category. Most commenters
requested clarification of subjects discussed or specific terminology
used in the circular. Across the board, commenters were receptive to
FTA providing consolidated and comprehensive guidance concerning joint
development.
Seventeen commenters addressed concerns regarding real property,
including disposition, incidental use, mandatory contractual
provisions, parking, satisfactory continuing control, shared use,
subordination, and transfers. Thirteen commenters sought clarification
on application of the eligibility criteria, and distinguishing between
activities eligible for FTA assistance as joint development and other
capital transit projects. Ten commenters asked FTA to clarify
application of the guidance concerning non-FTA-assisted property, joint
development application to all modes of public transportation rather
than just to rail, and application of the ``originally authorized
purpose''. Six commenters questioned the focus of FTA's stated joint
development policy. Six commenters addressed FTA's stated position on
the concept of value capture. Five commenters asked FTA to explicitly
designate affordable housing development as a type of joint
development, commensurate to the recognition given in the Capital
Investment Program (New/Small Starts). Three commenters sought
clarification on program income. Two commenters addressed
distinguishing between FTA's usage of the terms joint development and
TOD and the usage employed by the transit industry. One commenter
requested FTA to provide specific categorical exclusions for joint
development under the National Environmental Policy Act (NEPA). Another
commenter requested FTA to consider car-sharing as a transit mode
eligible for joint development. One commenter requested requiring more
safety training for commercial drivers.
FTA Response: FTA is pleased by the positive and supportive
responses provided by the majority of commenters to its proposed
circular. The questions and comments received identified several topics
for which FTA has provided additional clarification in the final
circular. Some comments, however, addressed subjects that are beyond
the scope of this circular, but will be useful in development of FTA
programs and guidance in the future. This circular consolidates all of
the existing FTA guidance on joint development, and supersedes any FTA
guidance on joint development contained in other sources. Thus, this
circular supersedes, in their entirety, discrete previously issued
guidance on joint development, including FTA's 2007 guidance and 1997
policy described above. This circular does not supersede in entirety
any existing FTA circulars that include guidance on joint development,
but rather only supersedes the specific joint development guidance
contained therein. Affected circulars will be amended according to
their regular update cycles.
Joint development may be undertaken in conjunction with any mode of
public transportation, e.g., bus, bus rapid transit, transit malls,
light rail, heavy rail, commuter rail, or ferry. Federal transit law
explicitly includes stations and terminals used by intercity bus and
intercity passenger rail systems, except that provided by Amtrak, for
joint development eligibility. Car sharing services, even if located in
close proximity to a transit facility, are not considered to be public
transportation as they are not open to the general public or a segment
of the general public defined by age, disability, or low income.
Joint development is an eligible capital transit project by
statute, and is considered to be within the scope of all capital grants
unless expressly prohibited by a specific term or condition of the
grant. Under the terms of FTA's Master Agreement, joint development is
considered an ``originally authorized purpose'' of prior grants made
for real property acquisition.
The terms ``joint development'' and ``transit-oriented
development'' (TOD) are often used interchangeably within the transit
industry. Whereas FTA distinguishes between them, FTA recognizes that
some recipients consider TOD as joint development and vice versa. FTA
considers a transit operator to be a direct partner or participant in
joint development projects. While a transit operator may be a
stakeholder in TOD, FTA considers TOD to have a broader, community-
sized scope. This circular is not applicable to all joint development
projects undertaken by FTA grantees. This circular applies only to
joint development projects that use either FTA-assisted real property
or FTA funds in the joint development project itself, and, therefore,
have a Federal interest. FTA realizes that its grantees may undertake
transit-oriented development or joint development without any Federal
interest. This final circular does not apply to such projects. FTA
reserves further discussion on TOD for a future document.
FTA's policy is to maximize the utility of FTA-assisted projects
and to encourage the generation of program income through joint
development. Benefits of joint development primarily include revenue
generation for transit, as well as efficient land use, economic
development, increased transit ridership, shared project costs, and
improved transit connectivity. The siting and development of transit
service adds to property values near transit stations, and that
colocation of residential, commercial, and retail establishments with
the transit system enhances social and economic returns for the
community. FTA's treatment of joint development revenues as program
income enables a grantee to apply such revenues to the operating or
capital costs of the transit system. Therefore, joint development
projects should be planned and undertaken to generate revenue for the
transit system from the added value it creates, and project sponsors
should negotiate project benefits, whenever possible, on the basis of
the value added to the property by the joint development. Joint
development is among the value capture strategies most commonly used to
fund and/or finance transit, although other value capture strategies
are also utilized.
[[Page 50731]]
Although joint development is intended to realize value capture
from transit, FTA acknowledges that many transit agencies have
incorporated affordable housing goals into their joint development
policies. FTA does not wish to interfere with local policy goals
relative to joint development. Accordingly, FTA does not designate the
types of joint development projects that a grantee may undertake or
give preference to any particular types of joint development projects.
Section 5302(3)(G) of title 49, United States Code, establishes the
following criteria for determining whether a joint development
improvement is eligible as an FTA-assisted project under Federal
transit law. An eligible joint development project must: (1) Either
enhance economic development or incorporate private investments, such
as commercial and residential development; (2) either enhance the
effectiveness of public transportation and be related physically or
functionally to public transportation, or establish new or enhanced
coordination between public transportation and other transportation;
(3) provide a fair share of revenue that will be used for public
transportation; and (4) provide that a person occupying space in a
joint development facility shall pay a fair share of the costs of the
facility through rental payments or other means. No new criteria have
been established, although this final circular imposes constraints on
the fair share of revenue criterion. All four criteria must be
satisfied for a joint development project to be eligible for FTA
assistance. The final circular provides additional information
concerning satisfying these criteria.
Grantees often undertake joint development, not as an FTA-assisted
activity, but as an incidental use of property that was previously
acquired using FTA assistance. FTA-assisted real property may be used
for joint development provided that the joint development is compatible
with the approved purposes of the property and the recipient will
retain satisfactory continuing control of the property to ensure that
the Federal interest is protected and the property continues to serve
its transit purpose. FTA must concur in any incidental uses of FTA-
assisted property.
Interests in real property that was acquired with FTA assistance
may be conveyed or encumbered for the purpose of joint development. The
final circular provides additional discussion of satisfactory
continuing control and mechanisms for preserving the use of FTA-
assisted real property for its transit purpose. The final circular also
clarifies the mandatory contractual provisions necessary to protect the
Federal interest when FTA-assisted real property is conveyed to a third
party for the purpose of joint development.
The final circular provides additional information to clearly
distinguish between a conveyance of real property for the purpose of
joint development and the disposition of excess real property no longer
needed for transit purposes. Once FTA-assisted real property is
disposed of, the Federal interest in the property is extinguished, and
that property may not be used in an FTA-assisted joint development
project. In contrast, FTA retains an interest in the use of real
property that has been conveyed for the purpose of joint development.
Additionally, the final circular clarifies the distinction between
incidental use and shared use, and considerations for the modification
of FTA-assisted parking facilities for joint development purposes.
FTA does not provide a specific funding program for joint
development. Rather, joint development is considered a kind of capital
project and may be funded by most FTA capital programs. Because the
joint development project may take a variety of forms and be funded by
multiple programs, the applicable Federal requirements will vary.
Requirements of the specific FTA funding program used must be adhered
to for FTA-assisted joint development.
NEPA categorical exclusions are a category of actions that, based
on past experience with similar actions, do not individually or
cumulatively have a significant effect on the environment. FTA's
categorical exclusions are set out at 23 CFR 771.118(c). The exclusion
at 23 CFR 771.118(c)(10) is often referred to as the joint development
exclusion and most FTA-assisted joint development projects should
qualify under this exclusion. However, even actions that would normally
be classified as categorically excluded may require environmental
review under certain circumstances, and a project sponsor should work
with its FTA regional office to determine what level of environmental
review is required for a project.
The comment regarding commercial driver's licenses is beyond the
scope of this circular.
(b) Fair Share of Revenue
In the notice of availability of the proposed joint development
circular, FTA invited comments specifically concerning the ``fair share
of revenue'' criterion. FTA did not expressly define the term ``fair
share of revenue'' or set a monetary threshold for the same. Instead,
FTA proposed to reserve the right to decline funding for a joint
development project if the project would not generate a meaningful
amount of revenue. FTA sought comment on how it should assess whether a
project will generate a ``fair share of revenue,'' including any
measures or criteria FTA should use.
FTA received sixteen comments, most of which were opposed to FTA's
proposal. Of particular concern was the change in policy regarding
FTA's deference to grantee decisions concerning the fair share of
revenue determination and FTA's right to decline funding for the joint
development if a meaningful amount of revenue is not generated,
expressed by ten commenters. Another major concern, raised by ten
commenters, was the lack of consideration for all benefits that accrue
to transit from a joint development project, beyond solely the revenue
generated by the joint development. Additional concerns raised regarded
FTA's proposal not to treat increased fare box receipts attributable to
the joint development as ``revenue'' for purposes of the ``fair share
of revenue'' criterion. Further, FTA's refusal to include fare box
receipts as ``revenue'' for this criterion was considered as a barrier
to partnerships in joint development and other transit infrastructure
development given the constrained financial environment in which local
match requirements are made.
A few commenters suggested that FTA should adopt standards, provide
financial criteria, and establish parameters and required documentation
for fair share of revenue determinations. Some commenters recommended
use of a cost-benefit analysis or a ratio of transit share relative to
project revenues, including careful examination of market conditions,
in determining a fair share of revenue. While no comments proffered
definitions for either ``fair share of revenue'' or ``meaningful,''
several commenters requested that FTA define these terms. One commenter
endorsed FTA's proposal, noting that FTA should consider maximizing
competition and ensuring a high return-on-investment in capturing the
value of transit improvements, and should actually determine the fair
share of revenue for projects at the Federal level.
FTA Response: The fair share of revenue criterion is not new for
joint development. Historically, FTA has taken the position that
questions, such as what is a fair share, and what form it should take,
would be negotiated between the parties involved in the joint
development. FTA's 2007 guidance on
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joint development emphasized deference to the decisions of the project
sponsor, negotiating and contracting at arm's length with third
parties, to determine what constitutes a fair share of revenue.
However, constraints on the availability of transit funding at all
levels of government mandate that transit systems take advantage of
innovative funding strategies, including value capture. Accordingly,
FTA seeks to ensure that recipients are fairly remunerated for the use
of FTA assistance for joint development projects. The final circular
establishes as a minimum threshold for the amount of revenue that a
recipient cumulatively receives from a joint development project the
amount of the original Federal investment in the joint development
project. This is a minimum threshold for revenues received from an FTA-
assisted joint development project; it is anticipated that grantees
will generally negotiate at a higher level the amount of revenue they
will receive from the joint development.
There is no ``one-size-fits-all'' fair share of revenue
determination, just as there is no ``one-size-fits all'' joint
development project. Inherent to the negotiating process are
considerations for the type of project to be undertaken and priorities
that the transit agency and local government seek to advance through
the joint development project. Beyond the minimum threshold described
above, the fair share of revenue should reflect the respective goals
and priorities of the parties involved in the joint development. While
it is possible to project the potential revenue production from a joint
development project, it is difficult, from an economic perspective, for
FTA to determine the precise share any party should receive. This is
due to many factors that are difficult to quantify, such as market
power, local development priorities (social, economic, or a mix of
both), agglomeration effects, and other influences.
In determining the fair share of revenue it should receive, the
project sponsor must rely on market analyses and other due diligence
examinations. Although it is reasonable to presume that these types of
efforts are standard practice on the part of grantees, the final
circular makes conduct of such analyses a requirement. Appended to the
final circular are documentation to be completed by the grantee in
identifying pertinent project financial information and certifying
conduct of the required due diligence.
Some commenters proposed that FTA should consider a joint
development project's non-revenue benefits to transit in addition to
the potential for revenue generation. FTA does consider such benefits
to transit under the second criterion. The second criterion concerns
overall benefits to transit provided by the joint development,
including enhanced effectiveness and enhanced intermodal
transportation. FTA also gives consideration for increased fare box
receipts generated as a result of the joint development under this
transit benefit criterion rather than under the fair share of revenue
criterion. To be eligible for FTA's participation, a joint development
must satisfy each of the statutory criteria, and while non-revenue
benefits to transit are considered, they cannot satisfy the statutory
requirement for a fair share of revenue.
(c) FTA Review Process
The proposed circular did not include a chapter on the process FTA
will follow to review and approve a proposed joint development project.
FTA sought comments for consideration in preparing the chapter for
inclusion in the final circular.
Eleven commenters submitted to the docket on the FTA review
process. Six commenters requested FTA to modify the current checklist
approach to grant automatic approval if there is indication that the
criteria will be satisfied. Five commenters recommended that FTA
establish a mechanism to modify joint development agreements throughout
the grantee's negotiations with developers to reflect changes. Five
commenters raised concerns of the timeliness and consistency of FTA
reviews across its regions, and requested that the process be clear,
simple and flexible, and include graphics. One commenter requested FTA
to coordinate its review with the U.S. Department of Housing and Urban
Development for projects incorporating affordable housing. Another
commenter asked that FTA provide examples of approved projects and
their associated financial information. One commenter requested that
FTA make the new chapter available for public comment.
FTA Response: The majority of commenters acknowledge the ease of
using the current Joint Development Checklist for submitting joint
development proposals for FTA review. As a checklist, it is a rote
exercise by the grantee to indicate that statutory criteria have been
met. It is, therefore, understandable that FTA should be asked to
provide automatic approval when the grantee has indicated meeting all
of the criteria, with the grantee retaining supporting documentation
should FTA request it. Because it is merely a checklist, however, it
provides limited information to FTA on the substance and design of the
project. Therefore, FTA has broadened the checklist, including some
parameters, to identify pertinent information about the proposed joint
development project. The new document, Joint Development Project
Request Form, is intended to facilitate discussion between the grantee
and FTA concerning the joint development proposal by reflecting those
considerations that the grantee and its partners may find most useful
during the project development process. Additionally, this form
requires the grantee to identify documentation used to justify its
submission.
FTA recognizes that joint development negotiations require
considerable exchanges and deliberations between parties, and that
development of the joint development agreement undergoes a rigorous
process. Adding to this difficulty is the imposition of certain Federal
requirements on the grantee's joint development partners. To account
for changing circumstances over the course of the project's
development, FTA has established a tiered approach to reviewing joint
development proposals. Project sponsors may, and are strongly
encouraged to, submit a preliminary proposal for FTA review to frame
how eligibility criteria may be satisfied relative to specific elements
of the proposed joint development, and to identify explicit terms and
conditions to which the joint development partners must agree.
The final circular provides additional guidance to all stakeholders
to consider for a joint development proposal. A primary objective of
the circular is to clarify FTA joint development requirements and their
compliance. Accordingly, it is FTA's expectation that the circular will
improve the efficiency of the grantee's submission and of FTA's review.
Joint development is frequently used to provide or retain
affordable housing in local communities. As such, it promotes community
livability and sustainability by providing transportation options for
those served by the transit system. FTA has been an active participant
in the Administration's Partnership for Sustainable Communities, and
continues to strive to overcome barriers imposed by Federal
requirements. To the extent appropriate, FTA will coordinate joint
development with
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Federal housing programs to achieve procedural efficiencies.
FTA sought examples of joint development projects that illustrate
the many issues that are encountered; none were received. While FTA
cannot include actual projects in its guidance, it does provide
illustrative examples of specific elements of joint development
projects in the final circular.
Therese W. McMillan,
Acting Administrator.
[FR Doc. 2014-20097 Filed 8-22-14; 8:45 am]
BILLING CODE 4910-57-P
