Project Management Oversight, 44590-44596 [2019-18286]
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Federal Register / Vol. 84, No. 165 / Monday, August 26, 2019 / Proposed Rules
DEPARTMENT OF TRANSPORTATION
Federal Transit Administration
49 CFR Part 633
[Docket No. FTA–2019–0016]
RIN 2132–AB35
Project Management Oversight
Federal Transit Administration
(FTA), DOT.
ACTION: Notice of proposed rulemaking
(NPRM); request for comments.
AGENCY:
The Federal Transit
Administration proposes to amend its
project management oversight rule to
make it consistent with recent statutory
changes and to modify the scope and
applicability of the rule. FTA seeks
comments from project sponsors, the
transit industry, other stakeholders, and
the public on the proposed changes to
the rule.
DATES: Comments must be received
October 25, 2019. Any comments filed
after this deadline will be considered to
the extent practicable.
ADDRESSES: You may submit comments,
identified by the docket number at the
top of this document, by any of the
following methods:
• Federal eRulemaking Portal: Go to
https://www.regulations.gov and follow
the instructions for submitting
comments.
• Mail: Docket Management Facility,
U.S. Department of Transportation, 1200
New Jersey Ave. SE, West Building
Ground Floor, Room W12–140,
Washington, DC 20590–0001.
• Hand Delivery or Courier: West
Building Ground Floor, Room W12–140,
1200 New Jersey Ave. SE, between 9:00
a.m. and 5:00 p.m. Eastern time,
Monday through Friday, except Federal
holidays.
• Fax: (202) 493–2251.
Instructions: All submissions received
must include the agency name and
docket number or Regulatory
Information Number (RIN) for this
rulemaking. All comments received will
be posted without change to
www.regulations.gov, including any
personal information provided. You
may review the U.S. Department of
Transportation’s (DOT) complete
Privacy Act Statement in the Federal
Register published on April 11, 2000
(65 FR 19477).
Docket: For access to the docket to
read background documents or
comments received, go to
www.regulations.gov at any time or to
the U.S. Department of Transportation,
1200 New Jersey Ave. SE, Docket
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SUMMARY:
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Operations, M–30, West Building
Ground Floor, Room W12–140, between
9:00 a.m. and 5:00 p.m. Eastern time,
Monday through Friday, except Federal
holidays.
FOR FURTHER INFORMATION CONTACT: For
program matters, Corey Walker, Office
of Program Management, (202) 366–
0826 or corey.walker@dot.gov. For legal
matters, Mark Montgomery, Office of
Chief Counsel, (202) 366–4011 or
mark.montgomery@dot.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
II. Section-by-Section Analysis
III. Regulatory Analyses and Notices
I. Background
Recognizing a compelling need to
strengthen the management and
oversight of major capital projects, in
the Surface Transportation and Uniform
Relocation Assistance Act of 1987
(STURAA) (Pub. L. 100–17) (April 2,
1987), Congress authorized FTA’s
predecessor agency, the Urban Mass
Transportation Administration (UMTA),
to conduct oversight of major capital
projects and to promulgate a rule for
that purpose. The statute, now codified
at 49 U.S.C. 5327, authorizes FTA to
obtain the services of project
management oversight contractors
(PMOCs) to assist FTA in overseeing the
expenditure of Federal financial
assistance for major capital projects.
Further, the statute requires FTA to
promulgate a regulation that includes a
definition of ‘‘major capital project’’ to
identify the types of projects governed
by the rule.
Accordingly, UMTA promulgated a
rule for oversight of major capital
projects on September 1, 1989, at 49
CFR part 633 (54 FR 36708). At that
time, UMTA’s capital programs were
comparatively small, relative to today,
totaling a little more than $2 billion
annually. UMTA promulgated a
regulation that defined ‘‘major capital
project’’ as any project for the
construction of a new fixed guideway or
extension of an existing fixed guideway
or a project involving the rehabilitation
or modernization of an existing fixed
guideway with a total project cost of
$100 million or more. The rule limited
covered projects to those receiving
funds made available under sections 3,
9, or 18 of the Federal Mass Transit Act
of 1964, as amended, 23 U.S.C.
103(e)(4), or section 14(b) of the
National Capital Transportation
Amendments of 1979. That rule is still
in effect today.
By 2011, however, the annual dollar
value of the Federal transit capital
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programs was nearly five times the level
authorized under STURAA in 1987, and
the number of active PMOC task orders
was more than double the number in
1987. Furthermore, FTA funded a larger
number of projects with a total cost of
over one billion dollars that presented
significant oversight challenges. Thus,
on September 13, 2011, FTA published
a Notice of Proposed Rulemaking
(NPRM) (76 FR 56378) that proposed to
enable FTA to identify more clearly the
necessary management capacity and
capability of a sponsor of a major capital
project; spell out the many facets of
project management that must be
addressed in a project management
plan; tailor the level of FTA oversight to
the costs, complexities, and risks of a
major capital project; set forth the
means and objectives of risk
assessments for major capital projects;
and articulate the roles and
responsibilities of FTA’s PMOCs.
After the NPRM was published,
however, the Moving Ahead for Progress
in the 21st Century Act (MAP–21) (Pub.
L. 112–141) (July 6, 2012) repealed the
Fixed Guideway Modernization
program, created the State of Good
Repair program, and amended the
Capital Investment Grants Program to
add Core Capacity Improvement
projects and streamline the New and
Small Starts project development
process. Moreover, MAP–21 shifted the
initiation of project management
oversight to the project development
phase and removed the statutory
requirement that recipients of financial
assistance for projects with a total cost
of $1 billion submit an annual financial
plan. Given the fundamental changes to
these competitive and formula capital
programs, FTA withdrew the NPRM (78
FR 16460) to reexamine its proposed
definition of major capital projects and
its policy and procedures for risk
assessment. Subsequently, the Fixing
America’s Surface Transportation
(FAST) Act (Pub. L. 114–94) (December
4, 2015) further amended section 5327
to limit project management oversight to
quarterly reviews, absent a finding that
more frequent oversight was necessary,
and mandated that the Secretary
prescribe regulations outlining a process
for at-risk recipients to return to
quarterly reviews.
FTA has become much more
knowledgeable about the risks inherent
in major capital projects, having
conducted its own risk assessments
since 2005, witnessed some project
sponsors’ lack of management capacity
and capability and appropriate project
controls for some projects, and studied
the reasons for cost and schedule
changes on many major capital projects.
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Consequently, FTA now proposes to
amend its project management oversight
rule.
First, this proposed rule would
change the applicability of the
regulation by shifting the definition of a
‘‘major capital project’’ from one based
on the type of project or total project
cost to one based on both the amount of
Federal financial assistance and the
total project cost, which FTA views as
a more appropriate benchmark than the
type of project or total capital cost of a
project alone. The current definition of
a ‘‘major capital project’’ under 49 CFR
633.5 applies to all construction projects
for new fixed guideways or extensions
of existing fixed guideways, regardless
of project cost, and to fixed guideway
rehabilitation and modernization
projects with total project costs over
$100 million. The NPRM applies a
project cost threshold to all fixed
guideway capital projects. As a default,
the proposed rule raises the total project
cost threshold to $300 million or more
and requires that the project receive
$100 million or more in Federal
investment to be subject to project
management oversight. Under this
default, the number of current projects
undergoing project management
oversight would decrease by forty-nine,
out of a total of eighty-eight major
capital projects under construction,
allowing FTA to focus on higher-risk
projects.
Second, as described in more detail
below, the NPRM amends the regulation
to bring it into compliance with recent
statutory changes. The proposed rule
limits project management oversight to
quarterly reviews, absent a finding by
FTA that a recipient requires more
frequent oversight, and provides a
process for such a recipient to return to
quarterly reviews. Additionally, the rule
applies project management oversight to
major capital projects receiving Federal
financial assistance under any provision
of Federal law. The proposed changes
would have no impact on safety.
II. Summary of Provisions
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Section 633.1
Purpose
This section proposes an update to
reflect the mandate in 49 U.S.C. 5327(a)
to perform program management
oversight of major capital projects for
public transportation under Chapter 53
of Title 49, United States Code, or any
other provision of Federal law.
Section 633.3
Scope
This section proposes an update to
reflect the mandate in 49 U.S.C. 5327(a)
that the regulation applies to recipients
of Federal financial assistance
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undertaking a major capital project for
public transportation under Chapter 53
of Title 49, United States Code, or any
other provision of Federal Law.
Section 633.5
Definitions
This section sets forth the definitions
of some key terms applicable to this
rule. FTA proposes to establish a
definition for ‘‘project development’’
and remove the definitions for ‘‘full
funding agreement’’ and ‘‘FT Act.’’ Also,
FTA proposes to amend the current
definitions for ‘‘fixed guideway,’’
‘‘major capital project,’’ ‘‘project
management oversight,’’ and
‘‘recipient.’’
The current definition of a ‘‘major
capital project’’ under 49 CFR 633.5
applies to all construction projects for
new fixed guideways or extensions of
existing fixed guideways, regardless of
project cost, and to rehabilitation and
modernization projects with total
project costs over $100 million. In this
rule, FTA proposes to define a ‘‘major
capital project’’ generally as a project to
construct, expand, rehabilitate, or
modernize a fixed guideway of $300
million or more that receives $100
million or more in Federal financial
assistance. FTA believes it is more
appropriate to apply the regulation to
any given project based on the level of
Federal investment in addition to total
project cost, as opposed to the type of
project or the total project cost alone.
FTA further proposes that a project that
does not meet the dollar-amount
thresholds for the level of Federal
investment and total project cost may be
deemed a ‘‘major capital project’’ under
certain circumstances.
This section would amend the
definition of ‘‘fixed guideway’’ to add
passenger ferries as a qualifying public
transportation facility, to reflect
amendments made by MAP–21 to the
definition of ‘‘fixed guideway’’ under 49
U.S.C. 5302(7). FTA proposes to add a
definition for ‘‘project development’’ to
correspond with the MAP–21
requirement that oversight begins in this
phase, as reflected in 49 U.S.C.
5327(d)(2)(A). The proposed changes to
the remaining definitions, ‘‘project
management oversight’’ and ‘‘recipient,’’
are simply for clarity.
Section 633.11
Covered Projects
This section would amend the current
rule by omitting obsolete legal citations
and extending the regulation to all
major capital projects funded from any
source under 49 U.S.C. Chapter 53 or
any other Federal Law, as required
under 49 U.S.C. 5327(a).
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Section 633.13 Initiation of Project
Management Oversight Services
This section would make
amendments for clarity and consistency
with recent statutory changes. Per 49
U.S.C. 5327(d)(2)(A), project
management oversight now begins
during the project development phase
unless the Secretary determines that it
is more appropriate to begin the
oversight during another phase of the
project to maximize the transportation
benefits and cost savings.
Section 633.15 Access to Information
This section would make
amendments for clarity.
Section 633.17 Project Management
Oversight Contractor Eligibility
This section would make
amendments for clarity.
Section 633.19 Exclusion From the
Project Management Oversight Program
FTA proposes revising this section as
it is no longer necessary to identify the
administrative funding source (now in
49 U.S.C. 5338) for FTA to conduct
project management oversight. Instead,
this section would provide for an
exclusion from the definition of ‘‘major
capital project’’ for projects for which
the Administrator determines that
project management oversight would
not benefit the Federal government or
the recipient.
Section 633.21 Basic Requirement
This section would make
amendments for clarity and to reflect
that oversight now begins during the
project development phase of the
project, as required under 49 U.S.C.
5327(a).
Section 633.23 FTA Review of a
Project Management Plan
This section would make
amendments for clarity.
Section 633.25 Contents of a Project
Management Plan
The project management plan is
critical to successful management of any
major capital project, throughout the
development and implementation of
that project. The project management
plan and its sub plans further enable the
sponsor’s staff to effectively manage the
scope, budget, schedule, and quality of
the project through a set of common
objectives, while managing the safety
and security of the public. This section
would provide a summary to clarify that
a project management plan is not onesize-fits-all, but rather is based on the
complexity of the project. Further, as
required under 49 U.S.C. 5327(a), FTA
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proposes adding three additional
minimum elements to the plan: Periodic
updates of the plan, the recipient’s
commitment to submit a quarterly
project budget and schedule, and safety
and security management. Additionally,
based on industry best practice, FTA
proposes adding the management of
risks, contingencies, and insurance as
an element of the plan.
Section 633.27 Implementation of a
Project Management Plan
FTA’s review and approval of a
project management plan seeks to verify
that a sponsor has all the relevant
capabilities and resources in place to
ensure successful management of the
project using available best practices. A
project management plan is a dynamic
management tool that requires periodic
updates when a project transitions from
one phase to another, or as a result of
other changes, such as turnover in
personnel. This section would continue
the requirement for regular reporting
and clarify other requirements aimed at
improving the management of a major
capital project. Specifically, FTA’s
proposed amendments would limit
oversight to quarterly reviews, as
opposed to monthly reviews, but
provide for more frequent oversight
when the recipient fails to meet the
requirements of the project management
plan and the project is at risk of
materially exceeding the budget or
falling behind schedule. This section
also would add a process for at-risk and
noncompliant projects undergoing more
frequent oversight to return to quarterly
reviews.
Section 633.29
Plan Waivers
Project Management
FTA proposes repealing this section.
Instead, section 633.25 of this part, as
amended, would provide sufficient
flexibility to reflect FTA’s practices.
FTA may permit a recipient when
developing a project management plan
to incorporate applicable elements from
a previously approved project
management plan or to incorporate
procedures that a recipient uses to
manage other capital projects on a
programmatic basis.
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III. Regulatory Analyses and Notices
Executive Order 13771 (Reducing
Regulation and Controlling Regulatory
Costs)
This proposed rule is expected to be
an Executive Order 13771 deregulatory
action. Details on the estimated cost
savings of this proposed rule can be
found in the rule’s economic analysis.
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Executive Order 12866 (Regulatory
Planning and Review), Executive Order
13563 (Improving Regulation and
Regulatory Review) and Department of
Transportation (DOT) Regulatory
Policies and Procedures
Executive Orders 12866 and 13563
direct Federal agencies to assess all
costs and benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits—
including potential economic,
environmental, public health and safety
effects, distributive impacts, and equity.
The proposed rule would amend the
definition of a ‘‘major capital project’’
under 49 CFR part 633 by raising the
total project cost threshold and adding
a minimum Federal share, thereby
reducing the number of public
transportation projects subject to project
management oversight. This action
complies with Executive Orders 12866
and 13563 to improve regulation.
FTA has determined that this
rulemaking is not a significant
regulatory action within the meaning of
Executive Order 12866 and within the
meaning of DOT regulatory policies and
procedures. FTA has examined the
potential economic impacts of this
rulemaking and has determined that this
rulemaking is not economically
significant because it will not result in
an effect on the economy of $100
million or more. Additionally, this
proposed rule would not have an impact
on another agency and would not
materially alter the budgetary impacts of
entitlements, grants, user fees, or loan
programs. This rule would not raise
novel legal issues.
To calculate the benefits and annual
cost savings from this proposed rule,
FTA evaluated its project management
oversight contracts for major capital
projects from 2013 through 2018. This
period was chosen to reflect changes to
FTA’s program management oversight
procedures after MAP–21 was enacted
in 2012. This period included a number
of emergency relief program projects
under 49 U.S.C. 5324 to repair
significant damages to public
transportation infrastructure resulting
from Hurricane Sandy, which FTA also
analyzed.
Using FTA’s risk evaluation tool, FTA
evaluated projects in construction
during that period based on ten key risk
factors to produce a risk score from 0–
100. Projects were then assigned a risk
range based on the calculated score,
with low-risk projects in the range of 0–
39, medium-risk projects from 40–55,
and high-risk projects from 56–100. This
evaluation indicated that a majority of
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high-risk projects, including eighteen of
the twenty-two projects in the high-risk
range, involved total project costs of
over $300 million. While removing
project management oversight from
projects with total costs between $100
and $300 million may increase the risk
of materially exceeding budget or falling
behind schedule for some projects, there
are currently only four high-risk projects
in this range, and under the proposed
rule, FTA may deem certain projects
that do not meet the dollar-amount
thresholds a ‘‘major capital project’’ to
mitigate unacceptable risk.
Additionally, reducing the number of
lower-risk projects undergoing project
management oversight will allow FTA
to focus on higher-risk projects while
yielding annual cost savings to FTA and
its recipients.
FTA calculated the average total cost
of oversight for projects in construction
during that period that would not have
qualified as major capital projects under
the default threshold of this proposed
rule. FTA estimates that an average of
38.3 projects annually, including
emergency relief program projects,
would no longer require additional
oversight under the default threshold.
This proposed rule would reduce
recipients’ labor hours for oversight
procedures, which include attending
meetings, preparing quarterly reports
and other requested documents, and
accompanying contractors onto project
construction sites. To estimate the
potential cost savings for project
sponsors, FTA staff examined the
current projects in construction that
would no longer qualify as major capital
projects under the NPRM and estimated
the level of effort required for oversight
procedures. For two projects, FTA
received input from recipients.
Assuming variations in the level of
effort based on the complexity of the
project, FTA estimated that the labor
hours required for recipients ranges
from 1.7 to 2.3 times FTA’s level of
effort of approximately 39,477 hours per
year for project management oversight
procedures. Accordingly, FTA used an
average factor of two and determined
that the default threshold to qualify as
a major capital project under the
proposed rule would reduce the level of
effort required for project sponsors by
an average of 78,955 hours annually at
a wage rate of $139.67 based on an
average of the Bureau of Labor Statistics
rate for Construction Managers and the
PMOC loaded rate for contractors. This
burden reduction would result in an
annual cost savings to project sponsors
of approximately $11 million.
In addition, the proposed rule would
reduce the level of effort required under
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FTA’s project management oversight
contracts and yield corresponding cost
savings to FTA. Removing oversight
from an average of 38.3 projects
annually would yield annual cost
savings to FTA of approximately $8.1
million.
Executive Order 12372
(Intergovernmental Review)
The regulations effectuating Executive
Order 12372 regarding
intergovernmental consultation on
Federal programs and activities apply to
this proposed rulemaking.
Regulatory Flexibility Act
Paperwork Reduction Act
Federal agencies must obtain approval
from the Office of Management and
Budget (OMB) for each collection of
information they conduct, sponsor, or
require through regulations. FTA has
analyzed this rule under the Paperwork
Reduction Act and determined that it
does not impose additional information
collection requirements for the purposes
of the Act above and beyond existing
information collection clearances from
OMB.
In compliance with the Regulatory
Flexibility Act (Pub. L. 96–354; 5 U.S.C.
601–612), FTA has evaluated the likely
effects of the proposals set forth in this
NPRM on small entities, and has
determined that the NPRM would not
have a significant economic impact on
a substantial number of small entities.
Unfunded Mandates Reform Act of 1995
FTA has determined that this rule
does not impose unfunded mandates, as
defined by the Unfunded Mandates
Reform Act of 1995 (Pub. L. 104–4,
March 22, 1995, 109 Stat. 48). This rule
does not include a Federal mandate that
may result in expenditures of $155.1
million or more in any 1 year (when
adjusted for inflation) in 2012 dollars
for either State, local, and tribal
governments in the aggregate, or by the
private sector. Additionally, the
definition of ‘‘Federal mandate’’ in the
Unfunded Mandates Reform Act
excludes financial assistance of the type
in which State, local, or tribal
governments have authority to adjust
their participation in the program in
accordance with changes made in the
program by the Federal Government.
Federal public transportation law
permits this type of flexibility.
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Executive Order 13132 (Federalism)
Executive Order 13132 requires
agencies to assure meaningful and
timely input by State and local officials
in the development of regulatory
policies that may have a substantial
direct effect on the States, on the
relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government. FTA has analyzed
this action in accordance with the
principles and criteria contained in
Executive Order 13132, and FTA
determined that this action will not
have a substantial direct effect or
federalism implications on the States.
FTA also determined that this action
will not preempt any State law or
regulation or affect the States’ ability to
discharge traditional State governmental
functions.
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National Environmental Policy Act
NEPA requires Federal agencies to
analyze the potential environmental
effects of their proposed actions in the
form of a categorical exclusion,
environmental assessment, or
environmental impact statement. This
proposed rulemaking is categorically
excluded under FTA’s environmental
impact procedure at 23 CFR
771.118(c)(4), which pertains to
planning and administrative activities
that do not involve or lead directly to
construction, such as the promulgation
of rules, regulations, and directives.
FTA has determined that no unusual
circumstances exist in this instance, and
that a categorical exclusion is
appropriate for this rulemaking.
Executive Order 12630 (Taking of
Private Property)
FTA has analyzed this rule under
Executive Order 12630, Governmental
Actions and Interference with
Constitutionally Protected Property
Rights. FTA does not believe this rule
effects a taking of private property or
otherwise has taking implications under
Executive Order 12630.
Executive Order 12898 (Federal Actions
To Address Environmental Justice in
Minority Populations and Low-Income
Populations)
Executive Order 12898, Federal
Actions to Address Environmental
Justice in Minority Populations and
Low-Income Populations, and DOT
Order 5610.2(a) (77 FR 27534) require
DOT agencies to achieve environmental
justice (EJ) as part of their mission by
identifying and addressing, as
appropriate, disproportionately high
and adverse human health or
environmental effects, including
interrelated social and economic effects,
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of their programs, policies, and
activities on minority and/or lowincome populations. The DOT Order
requires DOT agencies to address
compliance with the Executive Order
and the DOT Order in all rulemaking
activities. In addition, on July 17, 2014,
FTA issued a circular to update its EJ
Policy Guidance for Federal Transit
Recipients (www.fta.dot.gov/legislation_
law/12349_14740.html), which
addresses administration of the
Executive Order and DOT Order.
FTA has evaluated this rule under the
Executive Order, the DOT Order, and
the FTA Circular and has determined
that this rulemaking will not cause
disproportionately high and adverse
human health and environmental effects
on minority or low-income populations.
Executive Order 12988 (Civil Justice
Reform)
This action meets the applicable
standards in sections 3(a) and 3(b)(2) of
Executive Order 12988 (February 5,
1996), Civil Justice Reform, to minimize
litigation, eliminate ambiguity, and
reduce burden.
Executive Order 13045 (Protection of
Children)
FTA has analyzed this proposed
rulemaking under Executive Order
13045 (April 21, 1997), Protection of
Children from Environmental Health
Risks and Safety Risks. FTA certifies
that this proposed rule will not cause an
environmental risk to health or safety
that might disproportionately affect
children.
Executive Order 13175 (Tribal
Consultation)
FTA has analyzed this action under
Executive Order 13175 (November 6,
2000), and determined that it will not
have substantial direct effects on one or
more Indian tribes; will not impose
substantial direct compliance costs on
Indian tribal governments; and will not
preempt tribal laws. Therefore, a tribal
summary impact statement is not
required.
Executive Order 13211 (Energy Effects)
FTA has analyzed this proposed
rulemaking under Executive Order
13211, Actions Concerning Regulations
That Significantly Affect Energy Supply,
Distribution, or Use (May 18, 2001).
FTA has determined that this action is
not a significant energy action under the
Executive Order, given that the action is
not likely to have a significant adverse
effect on the supply, distribution, or use
of energy. Therefore, a Statement of
Energy Effects is not requirement.
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Privacy Act
Anyone may search the electronic
form of all comments received into any
of FTA’s dockets by the name of the
individual submitting the comment, or
signing the comment if submitted on
behalf of an association, business, labor
union, or any other entity. You may
review USDOT’s complete Privacy Act
Statement published in the Federal
Register on April 11, 2000, at 65 FR
19477–8.
Statutory/Legal Authority for This
Rulemaking
This rulemaking is issued under the
authority of 49 U.S.C. 5327, which
requires the Secretary to conduct
oversight of major capital projects and
to promulgate a rule for that purpose
that includes a definition of major
capital project to delineate the types of
projects governed by the rule.
Regulation Identifier Number
A Regulation Identifier Number (RIN)
is assigned to each regulatory action
listed in the Unified Agenda of Federal
Regulations. The Regulatory Information
Service Center publishes the Unified
Agenda in April and October of each
year. The RIN set forth in the heading
of this document can be used to crossreference this action with the Unified
Agenda.
List of Subjects in 49 CFR Part 633
Grant programs—transportation, Mass
transportation.
Issued in Washington, DC, under authority
delegated in 49 CFR 1.90.
K. Jane Williams,
Acting Administrator.
In consideration of the foregoing, and
under the authority of 49 U.S.C. 5327,
the Federal Transit Administration
proposes to amend 49 CFR chapter VI
by revising part 633, as follows:
PART 633—PROJECT MANAGEMENT
OVERSIGHT
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Subpart A—General Provisions
Sec.
633.1 Purpose.
633.3 Scope.
633.5 Definitions.
Subpart B—Project Management Oversight
Services
633.11 Covered projects.
633.13 Initiation of project management
oversight services.
633.15 Access to information.
633.17 Project management oversight
contractor eligibility.
633.19 Exclusion from the project
management oversight program.
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Subpart C—Project Management Plans
633.21 Basic requirement.
633.23 FTA review of a project management
plan.
633.25 Contents of a project management
plan.
633.27 Implementation of a project
management plan.
633.29 [Reserved]
Authority: 49 U.S.C. 5327; 49 CFR 1.90.
Subpart A—General Provisions
§ 633.1
Purpose.
This part implements 49 U.S.C. 5327
regarding oversight of major capital
projects. The part provides for a twopart program for major capital projects
receiving Federal financial assistance.
First, subpart B discusses project
management oversight, designed
primarily to aid FTA in its role of
ensuring successful implementation of
federally-funded projects. Second,
subpart C discusses the requirement
that, to receive Federal financial
assistance for a major capital project for
public transportation under Chapter 53
of Title 49, United States Code, or any
other provision of Federal law, a
recipient must prepare a project
management plan approved by the
Administrator and carry out the project
in accordance with the project
management plan.
§ 633.3
Scope.
This rule applies to a recipient of
Federal financial assistance undertaking
a major capital project for public
transportation under Chapter 53 of Title
49, United States Code, or any other
provision of Federal Law.
§ 633.5
Definitions.
As used in this part:
(a) Administrator means the
Administrator of the Federal Transit
Administration or the Administrator’s
designee.
(b) Days means calendar days.
(c) Fixed guideway means any public
transportation facility: using and
occupying a separate right-of-way for
the exclusive use of public
transportation; using rail; using a fixed
catenary system; for a passenger ferry
system; or for a bus rapid transit system.
(d) FTA means the Federal Transit
Administration.
(e) Except as provided in § 633.19 of
this part, Major capital project means a
project that:
(1) Involves the construction,
expansion, rehabilitation, or
modernization of a fixed guideway that:
(i) Has a total project cost of $300
million or more and receives Federal
funds of $100 million or more; and
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(ii) Is not exclusively for the
acquisition, maintenance, or
rehabilitation of vehicles or other rolling
stock; or
(2) The Administrator determines to
be a major capital project because
project management oversight under
this part will benefit the Federal
government or the recipient, and the
project is not exclusively for the
acquisition, maintenance, or
rehabilitation of rolling stock or other
vehicles. Typically, this means a project
that:
(i) Involves new technology;
(ii) Is of a unique nature for the
recipient; or
(iii) Involves a recipient whose past
record indicates the appropriateness of
extending project management oversight
under this part.
(f) Project development means the
phase of a project after a locally
preferred alternative has been chosen
where design and engineering work is
undertaken to advance the project from
concept to a sufficiently mature scope to
allow for the development of a
reasonably reliable project cost,
schedule, and project management plan.
(g) Project management oversight
means the risk-informed monitoring of
the recipient’s management of a major
capital project’s progress to determine
whether the project is on time, within
budget, in conformance with design and
quality criteria, in compliance with all
applicable Federal requirements,
constructed to approved plans and
specifications, delivering the identified
benefits, and safely, efficiently, and
effectively implemented.
(h) Project management plan means a
written document prepared by a
recipient that explicitly defines all tasks
necessary to implement a major capital
project. A project management plan may
be a single document or a series of
documents or sub plans integrated with
one another into the project
management plan either directly or by
reference for the purpose of defining
how the recipient will effectively
manage, monitor, and control all phases
of the project.
(i) Recipient means a direct recipient
of Federal financial assistance or the
sponsor of a major capital project.
Subpart B—Project Management
Oversight Services
§ 633.11
Covered projects.
(a) The recipient is using funds made
available under Chapter 53 of Title 49,
United States Code, or any other
provision of Federal law; and
(b) The project is a major capital
project.
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§ 633.13 Initiation of project management
oversight services.
Project management oversight
services will be initiated as soon as
practicable, once the Administrator
determines that this part applies. In
most cases, this means that project
management oversight will begin during
the project development phase of the
project, unless the Administrator
determines it more appropriate to begin
oversight during another phase of the
project, to maximize the transportation
benefits and cost savings associated
with project management oversight.
§ 633.15
Access to information.
A recipient for a major capital project
shall provide the Administrator and the
project management oversight
contractor chosen under this part access
to its records and construction sites, as
reasonably may be required.
§ 633.17 Project management oversight
contractor eligibility.
(a) Any person or entity may provide
project management oversight services
in connection with a major capital
project, with the following exceptions:
(1) An entity may not provide project
management oversight services for its
own project; and
(2) An entity may not provide project
management oversight services for a
project if there exists a conflict of
interest.
(b) In choosing private sector persons
or entities to provide project
management oversight services, the
Administrator uses the procurement
requirements in the government-wide
procurement regulations, found at 48
CFR Chapter I.
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§ 633.19 Exclusion from the project
management oversight program.
The Administrator may, in
compelling circumstances, determine
that a project meeting the criteria of
§ 633.5(e)(1) of this part is not a major
capital project because project
management oversight under this part
will not benefit the Federal government
or the recipient. Typically, this means a
project that:
(a) Involves a recipient whose past
record indicates the appropriateness of
excluding the project from project
management oversight under this part;
and
(b) Involves such a greater level of
financial risk to the recipient than to the
Federal government that project
management oversight under this part is
made less necessary to secure the
recipient’s diligence.
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Subpart C—Project Management Plans
§ 633.21
Basic requirement.
(a) If a project meets the definition of
major capital project, the recipient shall
submit a project management plan
prepared in accordance with § 633.25 of
this part, as a condition of Federal
financial assistance.
(b)(1) The Administrator will notify
the recipient when the recipient must
submit the project management plan.
Normally, the Administrator will notify
the recipient sometime during the
project development phase. If the
Administrator determines the project is
a major capital project after the project
development phase, the Administrator
will inform the recipient of the
determination as soon as possible.
d. Revise subsection (b)(2) to read as
follows:
(2) Once the Administrator has
notified the recipient that it must
submit a plan, the recipient will have a
minimum of 90 days to submit the plan.
§ 633.23 FTA review of a project
management plan.
Within 60 days of receipt of a project
management plan, the Administrator
will notify the recipient that:
(a) The plan is approved;
(b) The plan is disapproved, including
the reasons for the disapproval;
(c) The plan will require modification,
as specified, before approval; or
(d) The Administrator has not yet
completed review of the plan, and state
when it will be reviewed.
§ 633.25 Contents of a project
management plan.
A project management plan must be
tailored to the type, costs, and
complexity of the major capital project,
and to the recipient’s management
capacity and capability. A project
management plan must be written to a
level of detail sufficient to enable the
recipient to determine whether the
necessary staff and processes are in
place to control the scope, budget,
schedule, and quality of the project,
while managing the safety and security
of all persons. A project management
plan must be developed with a
sufficient level of detail to enable the
Administrator to assess the adequacy of
the recipient’s plan.
At a minimum, a recipient’s project
management plan shall include:
(a) Adequate recipient staff
organization with well-defined
reporting relationships, statements of
functional responsibilities, job
descriptions, and job qualifications;
(b) A budget covering the project
management organization, appropriate
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44595
contractors and consultants, property
acquisition, utility relocation, systems
demonstration staff, audits,
contingencies, and miscellaneous
payments as the recipient may be
prepared to justify;
(c) A construction schedule for the
project;
(d) A document control procedure
and recordkeeping system;
(e) A change order procedure that
includes a documented, systematic
approach to the handling of
construction change orders;
(f) A description of organizational
structures, management skills, and
staffing levels required throughout the
construction phase;
(g) Quality control and quality
assurance functions, procedures, and
responsibilities for project design,
procurement, construction, system
installation, and integration of system
components;
(h) Material testing policies and
procedures;
(i) Internal plan implementation and
reporting requirements including cost
and schedule control procedures;
(j) Criteria and procedures to be used
for testing the operational system or its
major components;
(k) Periodic updates of the plan,
especially related to project budget and
project schedule, financing, ridership
estimates, and the status of local efforts
to enhance ridership where ridership
estimates partly depend on the success
of those efforts;
(l) The recipient’s commitment to
submit a project budget and project
schedule to the Administrator quarterly;
(m) Safety and security management;
and
(n) Management of risks,
contingencies, and insurance.
§ 633.27 Implementation of a project
management plan.
(a) Upon approval of a project
management plan by the Administrator
the recipient shall begin implementing
the plan.
(b) Generally, a project management
plan must be modified if the project is
at a new phase or if there have been
significant changes identified. If a
recipient must modify an approved
project management plan, the recipient
shall submit the proposed changes to
the Administrator along with an
explanation of the need for the changes.
(c) A recipient shall submit periodic
updates of the project management plan
to the Administrator. Such updates shall
include, but not be limited to:
(1) Project budget;
(2) Project schedule;
(3) Financing, both capital and
operating;
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(4) Ridership estimates, including
operating plan; and
(5) Where applicable, the status of
local efforts to enhance ridership when
estimates are contingent, in part, upon
the success of such efforts.
(d) A recipient shall submit current
data on a major capital project’s budget
and schedule to the Administrator on a
quarterly basis for the purpose of
reviewing compliance with the project
management plan, except that the
Administrator may require submission
more frequently than on a quarterly
basis if the recipient fails to meet the
requirements of the project management
plan and the project is at risk of
materially exceeding its budget or
falling behind schedule. Oversight of
projects monitored more frequently than
quarterly will revert to quarterly
oversight once the recipient has
demonstrated compliance with the
project management plan and the
project is no longer at risk of materially
exceeding its budget or falling behind
schedule.
§ 633.29
[Reserved]
[FR Doc. 2019–18286 Filed 8–23–19; 8:45 am]
BILLING CODE P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 648
RIN 0648–BH67
Fisheries of the Northeastern United
States; Omnibus Deep-Sea Coral
Amendment
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Announcement of availability of
omnibus amendment; request for
comments.
AGENCY:
NMFS announces that the
New England Fishery Management
Council has submitted the Omnibus
Deep-Sea Coral Amendment,
incorporating the Environmental
Assessment and the Regulatory
Flexibility Analysis, for review by the
Secretary of Commerce, and is
requesting comments from the public.
This action would protect deep-sea
corals from the impacts of commercial
fishing gear on Georges Bank and in the
Gulf of Maine. These proposed
management measures are intended to
reduce, to the extent practicable,
impacts of fishing gear on deep-sea
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SUMMARY:
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corals in New England while balancing
their costs to commercial fisheries.
DATES: Comments must be received on
or before October 25, 2019.
ADDRESSES: The Council has prepared a
draft Environmental Assessment (EA)
for this action that describes the
proposed measures in the Omnibus
Deep-Sea Coral Amendment and other
considered alternatives and analyzes the
impacts of the proposed measures and
alternatives. The Council submitted a
draft of the amendment to NMFS that
includes the draft EA, a description of
the Council’s preferred alternatives, the
Council’s rationale for selecting each
alternative, and a Regulatory Impact
Review (RIR)/Initial Regulatory
Flexibility Analysis (IRFA). Copies of
supporting documents used by the New
England Fishery Management Council,
including the EA and RIR/IRFA, are
available from: Thomas A. Nies,
Executive Director, New England
Fishery Management Council, 50 Water
Street, Newburyport, MA 01950 and
accessible via the internet in documents
available at: https://www.nefmc.org/
library/omnibus-deep-sea-coralamendment.
You may submit comments, identified
by NOAA–NMFS–2019–0092, by either
of the following methods:
• Electronic Submission: Submit all
electronic public comments via the
Federal e-Rulemaking Portal. Go to
www.regulations.gov/
#!docketDetail;D=NOAA-NMFS-20190092, click the ‘‘Comment Now!’’ icon,
complete the required fields, and enter
or attach your comments.
• Mail: Submit written comments to
NMFS, Greater Atlantic Regional
Fisheries Office, 55 Great Republic
Drive, Gloucester, MA 01930. Mark the
outside of the envelope ‘‘Comments on
Omnibus Deep-Sea Coral Amendment
NOA.’’
Instructions: Comments sent by any
other method, to any other address or
individual, or received after the end of
the comment period, may not be
considered by NMFS. All comments
received are a part of the public record
and will generally be posted for public
viewing on www.regulations.gov
without change. All personal identifying
information (e.g., name, address, etc.),
confidential business information, or
otherwise sensitive information
submitted voluntarily by the sender will
be publicly accessible. NMFS will
accept anonymous comments (enter ‘‘N/
A’’ in the required fields if you wish to
remain anonymous).
FOR FURTHER INFORMATION CONTACT:
Travis Ford, Fishery Policy Analyst,
(978) 281–9233.
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The
Magnuson-Stevens Fishery
Conservation and Management Act
(Magnuson-Stevens Act) requires that
each Regional Fishery Management
Council submit any amendment it
prepares to NMFS for review and
approval, disapproval, or partial
approval. The Magnuson-Stevens Act
also requires that NMFS, upon receiving
an amendment, immediately publish
notification in the Federal Register that
the amendment is available for public
review and comment. The Council
submitted its final version of Omnibus
Deep-Sea Coral Amendment to NMFS
for review on June 25, 2019. NMFS has
declared a transmittal date of August 20,
2019. The Council has reviewed the
Omnibus Deep-Sea Coral Amendment
proposed rule regulations as drafted by
NMFS and deemed them to be necessary
and appropriate as specified in section
303(c) of the Magnuson-Stevens Act.
SUPPLEMENTARY INFORMATION:
Background
The coral protection zones included
in this amendment were initially
developed during 2010 and 2011 as part
of the Council’s Omnibus Essential Fish
Habitat Amendment 2 (OHA2), finalized
April 9, 2018 (83 FR 15240; April 9,
2018). In September 2012, the Council
split the coral protection zones and
associated management measures out of
OHA2 into a separate omnibus
amendment. On March 13 and 15, 2017,
the Council held workshops in New
Bedford, MA, and Portsmouth, NH, to
discuss the coral zone boundaries,
considering the canyon and slope zones
on Georges Bank (broad zone) at the first
meeting and the offshore Gulf of Maine
zones at the second. On April 18, 2017,
the Council chose preferred alternatives
for the coral zones to go out to public
hearing. The Council held public
hearings throughout New England in
May of 2017, and revisited its preferred
alternatives at its June 2017 meeting. On
June 22, 2017, the Council took final
action on the Gulf of Maine portions of
the amendment, but did not select final
preferred alternatives for the broad coral
protection zone on Georges Bank.
Instead, the Council added a new
alternative for analysis that was
suggested during the public hearings.
Finally, on January 30, 2018, the
Council selected a final preferred
alternative for the broad zone and
adopted the Omnibus Deep-Sea Coral
Amendment.
The Council submitted the
Amendment to NMFS for initial review
on December 21, 2018. Due to the lapse
in Federal appropriations, NMFS’s
review of the document was delayed.
The Council submitted a revised draft of
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]]>Agencies
[Federal Register Volume 84, Number 165 (Monday, August 26, 2019)]
[Proposed Rules]
[Pages 44590-44596]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-18286]
[[Page 44590]]
=======================================================================
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DEPARTMENT OF TRANSPORTATION
Federal Transit Administration
49 CFR Part 633
[Docket No. FTA-2019-0016]
RIN 2132-AB35
Project Management Oversight
AGENCY: Federal Transit Administration (FTA), DOT.
ACTION: Notice of proposed rulemaking (NPRM); request for comments.
-----------------------------------------------------------------------
SUMMARY: The Federal Transit Administration proposes to amend its
project management oversight rule to make it consistent with recent
statutory changes and to modify the scope and applicability of the
rule. FTA seeks comments from project sponsors, the transit industry,
other stakeholders, and the public on the proposed changes to the rule.
DATES: Comments must be received October 25, 2019. Any comments filed
after this deadline will be considered to the extent practicable.
ADDRESSES: You may submit comments, identified by the docket number at
the top of this document, by any of the following methods:
Federal eRulemaking Portal: Go to https://www.regulations.gov and follow the instructions for submitting
comments.
Mail: Docket Management Facility, U.S. Department of
Transportation, 1200 New Jersey Ave. SE, West Building Ground Floor,
Room W12-140, Washington, DC 20590-0001.
Hand Delivery or Courier: West Building Ground Floor, Room
W12-140, 1200 New Jersey Ave. SE, between 9:00 a.m. and 5:00 p.m.
Eastern time, Monday through Friday, except Federal holidays.
Fax: (202) 493-2251.
Instructions: All submissions received must include the agency name
and docket number or Regulatory Information Number (RIN) for this
rulemaking. All comments received will be posted without change to
www.regulations.gov, including any personal information provided. You
may review the U.S. Department of Transportation's (DOT) complete
Privacy Act Statement in the Federal Register published on April 11,
2000 (65 FR 19477).
Docket: For access to the docket to read background documents or
comments received, go to www.regulations.gov at any time or to the U.S.
Department of Transportation, 1200 New Jersey Ave. SE, Docket
Operations, M-30, West Building Ground Floor, Room W12-140, between
9:00 a.m. and 5:00 p.m. Eastern time, Monday through Friday, except
Federal holidays.
FOR FURTHER INFORMATION CONTACT: For program matters, Corey Walker,
Office of Program Management, (202) 366-0826 or [email protected].
For legal matters, Mark Montgomery, Office of Chief Counsel, (202) 366-
4011 or [email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
II. Section-by-Section Analysis
III. Regulatory Analyses and Notices
I. Background
Recognizing a compelling need to strengthen the management and
oversight of major capital projects, in the Surface Transportation and
Uniform Relocation Assistance Act of 1987 (STURAA) (Pub. L. 100-17)
(April 2, 1987), Congress authorized FTA's predecessor agency, the
Urban Mass Transportation Administration (UMTA), to conduct oversight
of major capital projects and to promulgate a rule for that purpose.
The statute, now codified at 49 U.S.C. 5327, authorizes FTA to obtain
the services of project management oversight contractors (PMOCs) to
assist FTA in overseeing the expenditure of Federal financial
assistance for major capital projects. Further, the statute requires
FTA to promulgate a regulation that includes a definition of ``major
capital project'' to identify the types of projects governed by the
rule.
Accordingly, UMTA promulgated a rule for oversight of major capital
projects on September 1, 1989, at 49 CFR part 633 (54 FR 36708). At
that time, UMTA's capital programs were comparatively small, relative
to today, totaling a little more than $2 billion annually. UMTA
promulgated a regulation that defined ``major capital project'' as any
project for the construction of a new fixed guideway or extension of an
existing fixed guideway or a project involving the rehabilitation or
modernization of an existing fixed guideway with a total project cost
of $100 million or more. The rule limited covered projects to those
receiving funds made available under sections 3, 9, or 18 of the
Federal Mass Transit Act of 1964, as amended, 23 U.S.C. 103(e)(4), or
section 14(b) of the National Capital Transportation Amendments of
1979. That rule is still in effect today.
By 2011, however, the annual dollar value of the Federal transit
capital programs was nearly five times the level authorized under
STURAA in 1987, and the number of active PMOC task orders was more than
double the number in 1987. Furthermore, FTA funded a larger number of
projects with a total cost of over one billion dollars that presented
significant oversight challenges. Thus, on September 13, 2011, FTA
published a Notice of Proposed Rulemaking (NPRM) (76 FR 56378) that
proposed to enable FTA to identify more clearly the necessary
management capacity and capability of a sponsor of a major capital
project; spell out the many facets of project management that must be
addressed in a project management plan; tailor the level of FTA
oversight to the costs, complexities, and risks of a major capital
project; set forth the means and objectives of risk assessments for
major capital projects; and articulate the roles and responsibilities
of FTA's PMOCs.
After the NPRM was published, however, the Moving Ahead for
Progress in the 21st Century Act (MAP-21) (Pub. L. 112-141) (July 6,
2012) repealed the Fixed Guideway Modernization program, created the
State of Good Repair program, and amended the Capital Investment Grants
Program to add Core Capacity Improvement projects and streamline the
New and Small Starts project development process. Moreover, MAP-21
shifted the initiation of project management oversight to the project
development phase and removed the statutory requirement that recipients
of financial assistance for projects with a total cost of $1 billion
submit an annual financial plan. Given the fundamental changes to these
competitive and formula capital programs, FTA withdrew the NPRM (78 FR
16460) to reexamine its proposed definition of major capital projects
and its policy and procedures for risk assessment. Subsequently, the
Fixing America's Surface Transportation (FAST) Act (Pub. L. 114-94)
(December 4, 2015) further amended section 5327 to limit project
management oversight to quarterly reviews, absent a finding that more
frequent oversight was necessary, and mandated that the Secretary
prescribe regulations outlining a process for at-risk recipients to
return to quarterly reviews.
FTA has become much more knowledgeable about the risks inherent in
major capital projects, having conducted its own risk assessments since
2005, witnessed some project sponsors' lack of management capacity and
capability and appropriate project controls for some projects, and
studied the reasons for cost and schedule changes on many major capital
projects.
[[Page 44591]]
Consequently, FTA now proposes to amend its project management
oversight rule.
First, this proposed rule would change the applicability of the
regulation by shifting the definition of a ``major capital project''
from one based on the type of project or total project cost to one
based on both the amount of Federal financial assistance and the total
project cost, which FTA views as a more appropriate benchmark than the
type of project or total capital cost of a project alone. The current
definition of a ``major capital project'' under 49 CFR 633.5 applies to
all construction projects for new fixed guideways or extensions of
existing fixed guideways, regardless of project cost, and to fixed
guideway rehabilitation and modernization projects with total project
costs over $100 million. The NPRM applies a project cost threshold to
all fixed guideway capital projects. As a default, the proposed rule
raises the total project cost threshold to $300 million or more and
requires that the project receive $100 million or more in Federal
investment to be subject to project management oversight. Under this
default, the number of current projects undergoing project management
oversight would decrease by forty-nine, out of a total of eighty-eight
major capital projects under construction, allowing FTA to focus on
higher-risk projects.
Second, as described in more detail below, the NPRM amends the
regulation to bring it into compliance with recent statutory changes.
The proposed rule limits project management oversight to quarterly
reviews, absent a finding by FTA that a recipient requires more
frequent oversight, and provides a process for such a recipient to
return to quarterly reviews. Additionally, the rule applies project
management oversight to major capital projects receiving Federal
financial assistance under any provision of Federal law. The proposed
changes would have no impact on safety.
II. Summary of Provisions
Section 633.1 Purpose
This section proposes an update to reflect the mandate in 49 U.S.C.
5327(a) to perform program management oversight of major capital
projects for public transportation under Chapter 53 of Title 49, United
States Code, or any other provision of Federal law.
Section 633.3 Scope
This section proposes an update to reflect the mandate in 49 U.S.C.
5327(a) that the regulation applies to recipients of Federal financial
assistance undertaking a major capital project for public
transportation under Chapter 53 of Title 49, United States Code, or any
other provision of Federal Law.
Section 633.5 Definitions
This section sets forth the definitions of some key terms
applicable to this rule. FTA proposes to establish a definition for
``project development'' and remove the definitions for ``full funding
agreement'' and ``FT Act.'' Also, FTA proposes to amend the current
definitions for ``fixed guideway,'' ``major capital project,''
``project management oversight,'' and ``recipient.''
The current definition of a ``major capital project'' under 49 CFR
633.5 applies to all construction projects for new fixed guideways or
extensions of existing fixed guideways, regardless of project cost, and
to rehabilitation and modernization projects with total project costs
over $100 million. In this rule, FTA proposes to define a ``major
capital project'' generally as a project to construct, expand,
rehabilitate, or modernize a fixed guideway of $300 million or more
that receives $100 million or more in Federal financial assistance. FTA
believes it is more appropriate to apply the regulation to any given
project based on the level of Federal investment in addition to total
project cost, as opposed to the type of project or the total project
cost alone. FTA further proposes that a project that does not meet the
dollar-amount thresholds for the level of Federal investment and total
project cost may be deemed a ``major capital project'' under certain
circumstances.
This section would amend the definition of ``fixed guideway'' to
add passenger ferries as a qualifying public transportation facility,
to reflect amendments made by MAP-21 to the definition of ``fixed
guideway'' under 49 U.S.C. 5302(7). FTA proposes to add a definition
for ``project development'' to correspond with the MAP-21 requirement
that oversight begins in this phase, as reflected in 49 U.S.C.
5327(d)(2)(A). The proposed changes to the remaining definitions,
``project management oversight'' and ``recipient,'' are simply for
clarity.
Section 633.11 Covered Projects
This section would amend the current rule by omitting obsolete
legal citations and extending the regulation to all major capital
projects funded from any source under 49 U.S.C. Chapter 53 or any other
Federal Law, as required under 49 U.S.C. 5327(a).
Section 633.13 Initiation of Project Management Oversight Services
This section would make amendments for clarity and consistency with
recent statutory changes. Per 49 U.S.C. 5327(d)(2)(A), project
management oversight now begins during the project development phase
unless the Secretary determines that it is more appropriate to begin
the oversight during another phase of the project to maximize the
transportation benefits and cost savings.
Section 633.15 Access to Information
This section would make amendments for clarity.
Section 633.17 Project Management Oversight Contractor Eligibility
This section would make amendments for clarity.
Section 633.19 Exclusion From the Project Management Oversight Program
FTA proposes revising this section as it is no longer necessary to
identify the administrative funding source (now in 49 U.S.C. 5338) for
FTA to conduct project management oversight. Instead, this section
would provide for an exclusion from the definition of ``major capital
project'' for projects for which the Administrator determines that
project management oversight would not benefit the Federal government
or the recipient.
Section 633.21 Basic Requirement
This section would make amendments for clarity and to reflect that
oversight now begins during the project development phase of the
project, as required under 49 U.S.C. 5327(a).
Section 633.23 FTA Review of a Project Management Plan
This section would make amendments for clarity.
Section 633.25 Contents of a Project Management Plan
The project management plan is critical to successful management of
any major capital project, throughout the development and
implementation of that project. The project management plan and its sub
plans further enable the sponsor's staff to effectively manage the
scope, budget, schedule, and quality of the project through a set of
common objectives, while managing the safety and security of the
public. This section would provide a summary to clarify that a project
management plan is not one-size-fits-all, but rather is based on the
complexity of the project. Further, as required under 49 U.S.C.
5327(a), FTA
[[Page 44592]]
proposes adding three additional minimum elements to the plan: Periodic
updates of the plan, the recipient's commitment to submit a quarterly
project budget and schedule, and safety and security management.
Additionally, based on industry best practice, FTA proposes adding the
management of risks, contingencies, and insurance as an element of the
plan.
Section 633.27 Implementation of a Project Management Plan
FTA's review and approval of a project management plan seeks to
verify that a sponsor has all the relevant capabilities and resources
in place to ensure successful management of the project using available
best practices. A project management plan is a dynamic management tool
that requires periodic updates when a project transitions from one
phase to another, or as a result of other changes, such as turnover in
personnel. This section would continue the requirement for regular
reporting and clarify other requirements aimed at improving the
management of a major capital project. Specifically, FTA's proposed
amendments would limit oversight to quarterly reviews, as opposed to
monthly reviews, but provide for more frequent oversight when the
recipient fails to meet the requirements of the project management plan
and the project is at risk of materially exceeding the budget or
falling behind schedule. This section also would add a process for at-
risk and noncompliant projects undergoing more frequent oversight to
return to quarterly reviews.
Section 633.29 Project Management Plan Waivers
FTA proposes repealing this section. Instead, section 633.25 of
this part, as amended, would provide sufficient flexibility to reflect
FTA's practices. FTA may permit a recipient when developing a project
management plan to incorporate applicable elements from a previously
approved project management plan or to incorporate procedures that a
recipient uses to manage other capital projects on a programmatic
basis.
III. Regulatory Analyses and Notices
Executive Order 13771 (Reducing Regulation and Controlling Regulatory
Costs)
This proposed rule is expected to be an Executive Order 13771
deregulatory action. Details on the estimated cost savings of this
proposed rule can be found in the rule's economic analysis.
Executive Order 12866 (Regulatory Planning and Review), Executive Order
13563 (Improving Regulation and Regulatory Review) and Department of
Transportation (DOT) Regulatory Policies and Procedures
Executive Orders 12866 and 13563 direct Federal agencies to assess
all costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits--including potential economic, environmental, public
health and safety effects, distributive impacts, and equity. The
proposed rule would amend the definition of a ``major capital project''
under 49 CFR part 633 by raising the total project cost threshold and
adding a minimum Federal share, thereby reducing the number of public
transportation projects subject to project management oversight. This
action complies with Executive Orders 12866 and 13563 to improve
regulation.
FTA has determined that this rulemaking is not a significant
regulatory action within the meaning of Executive Order 12866 and
within the meaning of DOT regulatory policies and procedures. FTA has
examined the potential economic impacts of this rulemaking and has
determined that this rulemaking is not economically significant because
it will not result in an effect on the economy of $100 million or more.
Additionally, this proposed rule would not have an impact on another
agency and would not materially alter the budgetary impacts of
entitlements, grants, user fees, or loan programs. This rule would not
raise novel legal issues.
To calculate the benefits and annual cost savings from this
proposed rule, FTA evaluated its project management oversight contracts
for major capital projects from 2013 through 2018. This period was
chosen to reflect changes to FTA's program management oversight
procedures after MAP-21 was enacted in 2012. This period included a
number of emergency relief program projects under 49 U.S.C. 5324 to
repair significant damages to public transportation infrastructure
resulting from Hurricane Sandy, which FTA also analyzed.
Using FTA's risk evaluation tool, FTA evaluated projects in
construction during that period based on ten key risk factors to
produce a risk score from 0-100. Projects were then assigned a risk
range based on the calculated score, with low-risk projects in the
range of 0-39, medium-risk projects from 40-55, and high-risk projects
from 56-100. This evaluation indicated that a majority of high-risk
projects, including eighteen of the twenty-two projects in the high-
risk range, involved total project costs of over $300 million. While
removing project management oversight from projects with total costs
between $100 and $300 million may increase the risk of materially
exceeding budget or falling behind schedule for some projects, there
are currently only four high-risk projects in this range, and under the
proposed rule, FTA may deem certain projects that do not meet the
dollar-amount thresholds a ``major capital project'' to mitigate
unacceptable risk. Additionally, reducing the number of lower-risk
projects undergoing project management oversight will allow FTA to
focus on higher-risk projects while yielding annual cost savings to FTA
and its recipients.
FTA calculated the average total cost of oversight for projects in
construction during that period that would not have qualified as major
capital projects under the default threshold of this proposed rule. FTA
estimates that an average of 38.3 projects annually, including
emergency relief program projects, would no longer require additional
oversight under the default threshold.
This proposed rule would reduce recipients' labor hours for
oversight procedures, which include attending meetings, preparing
quarterly reports and other requested documents, and accompanying
contractors onto project construction sites. To estimate the potential
cost savings for project sponsors, FTA staff examined the current
projects in construction that would no longer qualify as major capital
projects under the NPRM and estimated the level of effort required for
oversight procedures. For two projects, FTA received input from
recipients. Assuming variations in the level of effort based on the
complexity of the project, FTA estimated that the labor hours required
for recipients ranges from 1.7 to 2.3 times FTA's level of effort of
approximately 39,477 hours per year for project management oversight
procedures. Accordingly, FTA used an average factor of two and
determined that the default threshold to qualify as a major capital
project under the proposed rule would reduce the level of effort
required for project sponsors by an average of 78,955 hours annually at
a wage rate of $139.67 based on an average of the Bureau of Labor
Statistics rate for Construction Managers and the PMOC loaded rate for
contractors. This burden reduction would result in an annual cost
savings to project sponsors of approximately $11 million.
In addition, the proposed rule would reduce the level of effort
required under
[[Page 44593]]
FTA's project management oversight contracts and yield corresponding
cost savings to FTA. Removing oversight from an average of 38.3
projects annually would yield annual cost savings to FTA of
approximately $8.1 million.
Regulatory Flexibility Act
In compliance with the Regulatory Flexibility Act (Pub. L. 96-354;
5 U.S.C. 601-612), FTA has evaluated the likely effects of the
proposals set forth in this NPRM on small entities, and has determined
that the NPRM would not have a significant economic impact on a
substantial number of small entities.
Unfunded Mandates Reform Act of 1995
FTA has determined that this rule does not impose unfunded
mandates, as defined by the Unfunded Mandates Reform Act of 1995 (Pub.
L. 104-4, March 22, 1995, 109 Stat. 48). This rule does not include a
Federal mandate that may result in expenditures of $155.1 million or
more in any 1 year (when adjusted for inflation) in 2012 dollars for
either State, local, and tribal governments in the aggregate, or by the
private sector. Additionally, the definition of ``Federal mandate'' in
the Unfunded Mandates Reform Act excludes financial assistance of the
type in which State, local, or tribal governments have authority to
adjust their participation in the program in accordance with changes
made in the program by the Federal Government. Federal public
transportation law permits this type of flexibility.
Executive Order 13132 (Federalism)
Executive Order 13132 requires agencies to assure meaningful and
timely input by State and local officials in the development of
regulatory policies that may have a substantial direct effect on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government. FTA has analyzed this action in
accordance with the principles and criteria contained in Executive
Order 13132, and FTA determined that this action will not have a
substantial direct effect or federalism implications on the States. FTA
also determined that this action will not preempt any State law or
regulation or affect the States' ability to discharge traditional State
governmental functions.
Executive Order 12372 (Intergovernmental Review)
The regulations effectuating Executive Order 12372 regarding
intergovernmental consultation on Federal programs and activities apply
to this proposed rulemaking.
Paperwork Reduction Act
Federal agencies must obtain approval from the Office of Management
and Budget (OMB) for each collection of information they conduct,
sponsor, or require through regulations. FTA has analyzed this rule
under the Paperwork Reduction Act and determined that it does not
impose additional information collection requirements for the purposes
of the Act above and beyond existing information collection clearances
from OMB.
National Environmental Policy Act
NEPA requires Federal agencies to analyze the potential
environmental effects of their proposed actions in the form of a
categorical exclusion, environmental assessment, or environmental
impact statement. This proposed rulemaking is categorically excluded
under FTA's environmental impact procedure at 23 CFR 771.118(c)(4),
which pertains to planning and administrative activities that do not
involve or lead directly to construction, such as the promulgation of
rules, regulations, and directives. FTA has determined that no unusual
circumstances exist in this instance, and that a categorical exclusion
is appropriate for this rulemaking.
Executive Order 12630 (Taking of Private Property)
FTA has analyzed this rule under Executive Order 12630,
Governmental Actions and Interference with Constitutionally Protected
Property Rights. FTA does not believe this rule effects a taking of
private property or otherwise has taking implications under Executive
Order 12630.
Executive Order 12898 (Federal Actions To Address Environmental Justice
in Minority Populations and Low-Income Populations)
Executive Order 12898, Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations, and DOT
Order 5610.2(a) (77 FR 27534) require DOT agencies to achieve
environmental justice (EJ) as part of their mission by identifying and
addressing, as appropriate, disproportionately high and adverse human
health or environmental effects, including interrelated social and
economic effects, of their programs, policies, and activities on
minority and/or low-income populations. The DOT Order requires DOT
agencies to address compliance with the Executive Order and the DOT
Order in all rulemaking activities. In addition, on July 17, 2014, FTA
issued a circular to update its EJ Policy Guidance for Federal Transit
Recipients (www.fta.dot.gov/legislation_law/12349_14740.html), which
addresses administration of the Executive Order and DOT Order.
FTA has evaluated this rule under the Executive Order, the DOT
Order, and the FTA Circular and has determined that this rulemaking
will not cause disproportionately high and adverse human health and
environmental effects on minority or low-income populations.
Executive Order 12988 (Civil Justice Reform)
This action meets the applicable standards in sections 3(a) and
3(b)(2) of Executive Order 12988 (February 5, 1996), Civil Justice
Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
Executive Order 13045 (Protection of Children)
FTA has analyzed this proposed rulemaking under Executive Order
13045 (April 21, 1997), Protection of Children from Environmental
Health Risks and Safety Risks. FTA certifies that this proposed rule
will not cause an environmental risk to health or safety that might
disproportionately affect children.
Executive Order 13175 (Tribal Consultation)
FTA has analyzed this action under Executive Order 13175 (November
6, 2000), and determined that it will not have substantial direct
effects on one or more Indian tribes; will not impose substantial
direct compliance costs on Indian tribal governments; and will not
preempt tribal laws. Therefore, a tribal summary impact statement is
not required.
Executive Order 13211 (Energy Effects)
FTA has analyzed this proposed rulemaking under Executive Order
13211, Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use (May 18, 2001). FTA has determined that
this action is not a significant energy action under the Executive
Order, given that the action is not likely to have a significant
adverse effect on the supply, distribution, or use of energy.
Therefore, a Statement of Energy Effects is not requirement.
[[Page 44594]]
Privacy Act
Anyone may search the electronic form of all comments received into
any of FTA's dockets by the name of the individual submitting the
comment, or signing the comment if submitted on behalf of an
association, business, labor union, or any other entity. You may review
USDOT's complete Privacy Act Statement published in the Federal
Register on April 11, 2000, at 65 FR 19477-8.
Statutory/Legal Authority for This Rulemaking
This rulemaking is issued under the authority of 49 U.S.C. 5327,
which requires the Secretary to conduct oversight of major capital
projects and to promulgate a rule for that purpose that includes a
definition of major capital project to delineate the types of projects
governed by the rule.
Regulation Identifier Number
A Regulation Identifier Number (RIN) is assigned to each regulatory
action listed in the Unified Agenda of Federal Regulations. The
Regulatory Information Service Center publishes the Unified Agenda in
April and October of each year. The RIN set forth in the heading of
this document can be used to cross-reference this action with the
Unified Agenda.
List of Subjects in 49 CFR Part 633
Grant programs--transportation, Mass transportation.
Issued in Washington, DC, under authority delegated in 49 CFR
1.90.
K. Jane Williams,
Acting Administrator.
In consideration of the foregoing, and under the authority of 49
U.S.C. 5327, the Federal Transit Administration proposes to amend 49
CFR chapter VI by revising part 633, as follows:
PART 633--PROJECT MANAGEMENT OVERSIGHT
Subpart A--General Provisions
Sec.
633.1 Purpose.
633.3 Scope.
633.5 Definitions.
Subpart B--Project Management Oversight Services
633.11 Covered projects.
633.13 Initiation of project management oversight services.
633.15 Access to information.
633.17 Project management oversight contractor eligibility.
633.19 Exclusion from the project management oversight program.
Subpart C--Project Management Plans
633.21 Basic requirement.
633.23 FTA review of a project management plan.
633.25 Contents of a project management plan.
633.27 Implementation of a project management plan.
633.29 [Reserved]
Authority: 49 U.S.C. 5327; 49 CFR 1.90.
Subpart A--General Provisions
Sec. 633.1 Purpose.
This part implements 49 U.S.C. 5327 regarding oversight of major
capital projects. The part provides for a two-part program for major
capital projects receiving Federal financial assistance. First, subpart
B discusses project management oversight, designed primarily to aid FTA
in its role of ensuring successful implementation of federally-funded
projects. Second, subpart C discusses the requirement that, to receive
Federal financial assistance for a major capital project for public
transportation under Chapter 53 of Title 49, United States Code, or any
other provision of Federal law, a recipient must prepare a project
management plan approved by the Administrator and carry out the project
in accordance with the project management plan.
Sec. 633.3 Scope.
This rule applies to a recipient of Federal financial assistance
undertaking a major capital project for public transportation under
Chapter 53 of Title 49, United States Code, or any other provision of
Federal Law.
Sec. 633.5 Definitions.
As used in this part:
(a) Administrator means the Administrator of the Federal Transit
Administration or the Administrator's designee.
(b) Days means calendar days.
(c) Fixed guideway means any public transportation facility: using
and occupying a separate right-of-way for the exclusive use of public
transportation; using rail; using a fixed catenary system; for a
passenger ferry system; or for a bus rapid transit system.
(d) FTA means the Federal Transit Administration.
(e) Except as provided in Sec. 633.19 of this part, Major capital
project means a project that:
(1) Involves the construction, expansion, rehabilitation, or
modernization of a fixed guideway that:
(i) Has a total project cost of $300 million or more and receives
Federal funds of $100 million or more; and
(ii) Is not exclusively for the acquisition, maintenance, or
rehabilitation of vehicles or other rolling stock; or
(2) The Administrator determines to be a major capital project
because project management oversight under this part will benefit the
Federal government or the recipient, and the project is not exclusively
for the acquisition, maintenance, or rehabilitation of rolling stock or
other vehicles. Typically, this means a project that:
(i) Involves new technology;
(ii) Is of a unique nature for the recipient; or
(iii) Involves a recipient whose past record indicates the
appropriateness of extending project management oversight under this
part.
(f) Project development means the phase of a project after a
locally preferred alternative has been chosen where design and
engineering work is undertaken to advance the project from concept to a
sufficiently mature scope to allow for the development of a reasonably
reliable project cost, schedule, and project management plan.
(g) Project management oversight means the risk-informed monitoring
of the recipient's management of a major capital project's progress to
determine whether the project is on time, within budget, in conformance
with design and quality criteria, in compliance with all applicable
Federal requirements, constructed to approved plans and specifications,
delivering the identified benefits, and safely, efficiently, and
effectively implemented.
(h) Project management plan means a written document prepared by a
recipient that explicitly defines all tasks necessary to implement a
major capital project. A project management plan may be a single
document or a series of documents or sub plans integrated with one
another into the project management plan either directly or by
reference for the purpose of defining how the recipient will
effectively manage, monitor, and control all phases of the project.
(i) Recipient means a direct recipient of Federal financial
assistance or the sponsor of a major capital project.
Subpart B--Project Management Oversight Services
Sec. 633.11 Covered projects.
(a) The recipient is using funds made available under Chapter 53 of
Title 49, United States Code, or any other provision of Federal law;
and
(b) The project is a major capital project.
[[Page 44595]]
Sec. 633.13 Initiation of project management oversight services.
Project management oversight services will be initiated as soon as
practicable, once the Administrator determines that this part applies.
In most cases, this means that project management oversight will begin
during the project development phase of the project, unless the
Administrator determines it more appropriate to begin oversight during
another phase of the project, to maximize the transportation benefits
and cost savings associated with project management oversight.
Sec. 633.15 Access to information.
A recipient for a major capital project shall provide the
Administrator and the project management oversight contractor chosen
under this part access to its records and construction sites, as
reasonably may be required.
Sec. 633.17 Project management oversight contractor eligibility.
(a) Any person or entity may provide project management oversight
services in connection with a major capital project, with the following
exceptions:
(1) An entity may not provide project management oversight services
for its own project; and
(2) An entity may not provide project management oversight services
for a project if there exists a conflict of interest.
(b) In choosing private sector persons or entities to provide
project management oversight services, the Administrator uses the
procurement requirements in the government-wide procurement
regulations, found at 48 CFR Chapter I.
Sec. 633.19 Exclusion from the project management oversight program.
The Administrator may, in compelling circumstances, determine that
a project meeting the criteria of Sec. 633.5(e)(1) of this part is not
a major capital project because project management oversight under this
part will not benefit the Federal government or the recipient.
Typically, this means a project that:
(a) Involves a recipient whose past record indicates the
appropriateness of excluding the project from project management
oversight under this part; and
(b) Involves such a greater level of financial risk to the
recipient than to the Federal government that project management
oversight under this part is made less necessary to secure the
recipient's diligence.
Subpart C--Project Management Plans
Sec. 633.21 Basic requirement.
(a) If a project meets the definition of major capital project, the
recipient shall submit a project management plan prepared in accordance
with Sec. 633.25 of this part, as a condition of Federal financial
assistance.
(b)(1) The Administrator will notify the recipient when the
recipient must submit the project management plan. Normally, the
Administrator will notify the recipient sometime during the project
development phase. If the Administrator determines the project is a
major capital project after the project development phase, the
Administrator will inform the recipient of the determination as soon as
possible.
d. Revise subsection (b)(2) to read as follows:
(2) Once the Administrator has notified the recipient that it must
submit a plan, the recipient will have a minimum of 90 days to submit
the plan.
Sec. 633.23 FTA review of a project management plan.
Within 60 days of receipt of a project management plan, the
Administrator will notify the recipient that:
(a) The plan is approved;
(b) The plan is disapproved, including the reasons for the
disapproval;
(c) The plan will require modification, as specified, before
approval; or
(d) The Administrator has not yet completed review of the plan, and
state when it will be reviewed.
Sec. 633.25 Contents of a project management plan.
A project management plan must be tailored to the type, costs, and
complexity of the major capital project, and to the recipient's
management capacity and capability. A project management plan must be
written to a level of detail sufficient to enable the recipient to
determine whether the necessary staff and processes are in place to
control the scope, budget, schedule, and quality of the project, while
managing the safety and security of all persons. A project management
plan must be developed with a sufficient level of detail to enable the
Administrator to assess the adequacy of the recipient's plan.
At a minimum, a recipient's project management plan shall include:
(a) Adequate recipient staff organization with well-defined
reporting relationships, statements of functional responsibilities, job
descriptions, and job qualifications;
(b) A budget covering the project management organization,
appropriate contractors and consultants, property acquisition, utility
relocation, systems demonstration staff, audits, contingencies, and
miscellaneous payments as the recipient may be prepared to justify;
(c) A construction schedule for the project;
(d) A document control procedure and recordkeeping system;
(e) A change order procedure that includes a documented, systematic
approach to the handling of construction change orders;
(f) A description of organizational structures, management skills,
and staffing levels required throughout the construction phase;
(g) Quality control and quality assurance functions, procedures,
and responsibilities for project design, procurement, construction,
system installation, and integration of system components;
(h) Material testing policies and procedures;
(i) Internal plan implementation and reporting requirements
including cost and schedule control procedures;
(j) Criteria and procedures to be used for testing the operational
system or its major components;
(k) Periodic updates of the plan, especially related to project
budget and project schedule, financing, ridership estimates, and the
status of local efforts to enhance ridership where ridership estimates
partly depend on the success of those efforts;
(l) The recipient's commitment to submit a project budget and
project schedule to the Administrator quarterly;
(m) Safety and security management; and
(n) Management of risks, contingencies, and insurance.
Sec. 633.27 Implementation of a project management plan.
(a) Upon approval of a project management plan by the Administrator
the recipient shall begin implementing the plan.
(b) Generally, a project management plan must be modified if the
project is at a new phase or if there have been significant changes
identified. If a recipient must modify an approved project management
plan, the recipient shall submit the proposed changes to the
Administrator along with an explanation of the need for the changes.
(c) A recipient shall submit periodic updates of the project
management plan to the Administrator. Such updates shall include, but
not be limited to:
(1) Project budget;
(2) Project schedule;
(3) Financing, both capital and operating;
[[Page 44596]]
(4) Ridership estimates, including operating plan; and
(5) Where applicable, the status of local efforts to enhance
ridership when estimates are contingent, in part, upon the success of
such efforts.
(d) A recipient shall submit current data on a major capital
project's budget and schedule to the Administrator on a quarterly basis
for the purpose of reviewing compliance with the project management
plan, except that the Administrator may require submission more
frequently than on a quarterly basis if the recipient fails to meet the
requirements of the project management plan and the project is at risk
of materially exceeding its budget or falling behind schedule.
Oversight of projects monitored more frequently than quarterly will
revert to quarterly oversight once the recipient has demonstrated
compliance with the project management plan and the project is no
longer at risk of materially exceeding its budget or falling behind
schedule.
Sec. 633.29 [Reserved]
[FR Doc. 2019-18286 Filed 8-23-19; 8:45 am]
BILLING CODE P
