Federal Register, Volume 75, Number 30, February 16, 2010, Pages 7027-7148

Federal Register/Vol. 75, No. 30 / Tuesday, February 16, 2010 / Notices

d. Following authorization of formula
funds or appropriation and publication
of discretionary projects, pre-award
authority for capital project
implementation activities, such as
property acquisition, demolition,
construction, and acquisition of
vehicles, equipment, or construction
materials, may be exercised only after
FTA concurs that all applicable
environmental requirements have been
satisfied, including those for actions
classified as normally requiring
preparation of environmental impact
statements, environmental assessments,
and categorical exclusions found in 23
CFR 771.117(d). Other conditions and
requirements set forth in paragraph 3,
below, must also be satisfied. Before
exercising pre-award authority, grantees
must comply with the conditions and
Federal requirements outlined in
paragraph 3 below. Failure to do so will
render an otherwise eligible project
ineligible for FTA financial assistance.
Capital projects under the Section 5310,
JARC, and New Freedom programs must
comply with specific program
requirements, including coordinated
planning and competitive selection. In
addition, before incurring costs,
grantees are strongly encouraged to
consult with the appropriate FTA
regional office regarding the eligibility
of the project for future FTA funds and
the applicability of the conditions and
Federal requirements.
e. As a general rule, pre-award
authority applies to the Section 5309
Capital Investment Bus and Bus-Related
Facilities, the Clean Fuels Bus program,
high priority project designations, and
any other transit discretionary projects
designated in SAFETEA-LU only
AFTER funds have been appropriated.
Pre-award authority is currently
extended for FY 2008 and FY 2009
discretionary project funding and to
discretionary allocations extended or
reprogrammed under the SAFETEA-LU
Technical Corrections Act of 2008, as of
June 6, 2008. For Section 5309 Capital
Investment Bus and Bus-Related
Facilities, Clean Fuels Program, or other
transit capital discretionary projects
such as those designated in an annual
Appropriations Act, the date that costs
may be incurred is: (1) For design and
environmental review, the
appropriations bill which funds the
project was enacted; and (2) for property
acquisition, demolition, construction,
and acquisition of vehicles, equipment,
or construction materials, the date that
FTA approves the document (ROD,
FONSI, or CE determination) that
completes the environmental review

process required by the National

Environmental Policy Act (NEPA) and
its implementing regulations. FTA
introduced this new trigger for pre-
award authority in FY 2006 in
recognition of the growing prevalence of
new grantees unfamiliar with Federal
and FTA requirements to ensure FTA's
continued ability to comply with NEPA
and related environmental laws.
Because FTA does not sign a final NEPA
document until MPO and statewide
planning requirements (including air
quality conformity requirements, if
applicable) have been satisfied, this new
trigger for pre-award will ensure
compliance with both planning and
environmental requirements before
irreversible action by the grantee.
f. In previous notices, FTA extended
pre-award authority to Section 330
projects referenced in the DOT
Appropriation Act, 2002, and the
Consolidated Appropriations
Resolution, 2003 and to those surface
transportation projects commonly
referred to as Section 115 projects
administered by FTA, for which
amounts were provided in the
Consolidated Appropriations Act, 2004,
Section 117 projects in the 2005
Appropriations Act, and Section 112 of
the 2006 Appropriations Act that are to
be administered by FTA. FTA, in the FY
2008 Apportionment Notice, extended
pre-award authority to high priority
projects in SAFETEA-LU, as of the date
they were transferred or allotted to FTA
for administration. The same conditions
described for bus projects apply to these
projects. We strongly encourage any
prospective applicant that does not have
a previous relationship with FTA to
review Federal grant requirements with
the FTA regional office before incurring
costs.
g. Blanket pre-award authority does
not apply to Section 5309 Capital
Investment New Starts funds. Specific
instances of pre-award authority for
Capital Investment New Starts projects
are described in paragraph 4 below. Pre-
award authority does not apply to
Capital Investment Bus and Bus-Related
Facilities or Clean Fuels projects
authorized for funding beyond this
fiscal year. Before an applicant may
incur costs for Capital Investment New
Starts projects, Bus and Bus-Related
Facilities projects, or any other projects
not yet published in a notice of
apportionments and allocations, it must
first obtain a written Letter of No
Prejudice (LONP) from FTA. To obtain
an LONP, a grantee must submit a
written request accompanied by
adequate information and justification
to the appropriate FTA regional office,

as described below.

h. Blanket pre-award authority does
not apply to Section 5314 National
Research Programs. Before an applicant
may incur costs for National Research
Programs, it must first obtain a written
Letter of No Prejudice (LONP) from
FTA. To obtain an LONP, a grantee must
submit a written request accompanied
by adequate information and
justification to the appropriate FTA
headquarters office. Information about
LONP procedures may be obtained from
the appropriate headquarters office.
3. Conditions
The conditions under which pre-
award authority may be utilized are
specified below:
a. Pre-award authority is not a legal or
implied commitment that the subject
project will be approved for FTA
assistance or that FTA will obligate
Federal funds. Furthermore, it is not a
legal or implied commitment that all
items undertaken by the applicant will
be eligible for inclusion in the project.
b. All FTA statutory, procedural, and
contractual requirements must be met.
c. No action will be taken by the
grantee that prejudices the legal and
administrative findings that the Federal
Transit Administrator must make in
order to approve a project.
d. Local funds expended by the
grantee pursuant to and after the date of
the pre-award authority will be eligible
for credit toward local match or
reimbursement if FTA later makes a
grant or grant amendment for the
project. Local funds expended by the
grantee before the date of the pre-award
authority will not be eligible for credit
toward local match or reimbursement.
Furthermore, the expenditure of local
funds on activities such as land
acquisition, demolition, or construction
before the date of pre-award authority
for those activities (i.e., the completion
of the NEPA process) would
compromise FTA's ability to comply
with Federal environmental laws and
may render the project ineligible for
FTA funding.
e. The Federal amount of any future
FTA assistance awarded to the grantee
for the project will be determined on the
basis of the overall scope of activities
and the prevailing statutory provisions
with respect to the Federal/local match
ratio at the time the funds are obligated.
f. For funds to which the pre-award
authority applies, the authority expires
with the lapsing of the fiscal year funds.
g. When a grant for the project is
subsequently awarded, the Financial
Status Report, in TEAM-Web, must
indicate the use of pre-award authority.
h. Environmental, Planning, and

Other Federal Requirements.

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United States. Office of the Federal Register. Federal Register, Volume 75, Number 30, February 16, 2010, Pages 7027-7148. Washington D.C.. UNT Digital Library. http://digital.library.unt.edu/ark:/67531/metadc67594/. Accessed July 28, 2014.