Ferry Boat Discretionary

Program Information (February 2008)

Background:

The Ferry Boat Discretionary (FBD) Program, which provides a special funding category for the construction of ferry boats and ferry terminal facilities, was created by Section 1064 of the Intermodal Surface Transportation Efficiency Act of 1991 (1991 ISTEA, Public Law 102-240). Section 1207 of the Transportation Equity Act for the 21st Century (TEA-21, Public Law 105-178) reauthorized the FBD funding category through FY 2003. It was continued through the Surface Transportation Extension Acts and Section 1801 of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU, Public Law 109-59), which added the program to 23 U.S.C. as Section 147, "Construction of ferry boats and ferry terminal facilities," and continued funding through FY 2009.

Statutory References:

23 U.S.C. 147; 23 U.S.C. 129(c); SAFETEA-LU Sections 1101(a)(13) and 1801

Funding:

Section 1101(a)(13) of SAFETEA-LU authorizes $65 million for FY 2008 for the FBD program. For FY 2008, under the provisions of Section 186 of Division K of the FY 2008 Consolidated Appropriations Act (Public Law 110-161), Congress designated the FY 2008 FBD funds for specific projects listed in the Joint Explanatory Statement accompanying the Consolidated Appropriations Act. In addition, Section 186 rescinds the excess authorized FBD funds, excluding the $20 million set-aside for marine highway systems on the National Highway System (NHS) in the States of Alaska, New Jersey and Washington under 23 U.S.C. 147(d), not needed for the designated projects. Therefore, $13,609,620 of the $65,000,000 is rescinded, leaving an authorization of $51,390,380 for FY 2008.

In addition, under the provisions of Section 120(e), Redistribution of Certain Authorized Funds, of Division K of the Consolidated Appropriations Act, any authorized funds, which are not available for obligation due to the imposition of an obligation limitation, are not allocated for the FBD program, but are redistributed to the States in accordance with Section 120(e). For FY 2008, the obligation limitation is 92.4 percent. Therefore, only $47,484,711 of the $51,390,380 reduced authorization will be available for the FBD program for FY 2008. After the deduction for the mandatory $20 million set-aside for Alaska, New Jersey and Washington, only $27,484,711 is available for these FY 2008 FBD designated projects. Each designated amount in the Joint Explanatory Statement has to be proportionally reduced accordingly.

Federal Share:

In accordance with 23 U.S.C. 147(b), the Federal share of the costs for any project eligible under this program is 80 percent.

Obligation Limitation:

The FBD funds are subject to obligation limitation; however, 100 percent obligation authority is provided with the allocation of funds for the selected projects. The obligation limitation reduces the available funding for the program under the provisions of SAFETEA-LU Section 1102(f) discussed above. For FY 2008, these provisions are in Section 120(e) of Division K of the Consolidated Appropriations Act.

Eligibility:

As specified in 23 U.S.C 147(a), this program is for the construction of ferry boats and ferry terminal facilities in accordance with 23 U.S.C.129(c). FBD funds are available for construction/improvement to ferry boats or ferry boat terminals where:

• It is not feasible to build a bridge, tunnel, combination thereof, or other normal highway structure in lieu of the use of such ferry.
• The operation of the ferry shall be on a route classified as a public road within the State and which has not been designated as a route on the Interstate System. Projects under this subsection may be eligible for both ferry boats carrying cars and passengers and ferry boats carrying passengers only.
• Such ferry boat or ferry terminal facility shall be publicly owned or operated or majority publicly owned if the Secretary determines, with respect to a majority publicly owned ferry or ferry terminal facility, that such ferry boat or ferry terminal facility provides substantial public benefits.
• The ferry does not operate in international waters except for: Hawaii, Alaska, any territory of the United States, and between a State and Canada.
• The set-aside discretionary funds for marine highway systems for use by the States of Alaska, New Jersey and Washington are available for the construction or refurbishing of ferry boats and ferry terminal facilities and approaches to such facilities within marine highway systems that are part of the NHS as set forth in 23 U.S.C. 147(d).

For FY 2008, the designated projects, in the Joint Explanatory Statement accompanying the Consolidated Appropriations Act, must meet the above statutory eligibility criteria in 23 U.S.C. 147(a) and 23 U.S.C. 129(c), because Congress did not include any "notwithstanding any other provision of law" eligibility provision this year.

Selection Criteria:

The only statutory selection criteria for the FBD program are found in 23 U.S.C. 147(c): "The Secretary shall give priority in the allocation of funds under this section to those ferry systems, and public entities responsible for developing ferries, that-

1. provide critical access to areas that are not well-served by other modes of surface transportation;
2. carry the greatest number of passengers and vehicles; or
3. carry the greatest number of passengers in passenger-only service."

Under the provisions of Section 186 of Division K of the Consolidated Appropriations Act, Congress has statutorily designated the FBD funds for FY 2008 for specific projects listed in the Joint Explanatory Statement. Therefore, the above selection criteria, under Section 147(c) of Title 23, do not apply for FY 2008 FBD funding. Also, because of the statutory designation of FY 2008 FBD funds, previously developed administrative selection criteria for the FBD program, such as leveraging of private or other public funding, State priorities, expeditious completion of a project, or the transportation benefits of the project, will also not be considered.

Solicitation Procedure:

For FY 2008, since all FBD funding has been designated by Congress for specific projects, applications will only be solicited for those projects. As indicated previously, these designated projects must still meet the eligibility requirements under Sections 147(a) and 129(c) of Title 23.

A memorandum is issued by the FHWA Headquarters Office of Program Administration to the FHWA division offices requesting submission of applications. The division offices send the memo to the State DOTs, who are responsible for submitting the applications to FHWA.

Submission Requirements:

Only State DOTs may submit applications for funding under this program. Because Congress designated the projects to be funded in FY 2008, a short application form will be used. The application for each project must include the following information (12 items). Those applications that do not include these items are considered incomplete and funding will not be available for those projects until an acceptable application is submitted. The application for each project must be submitted electronically in MS Word format, and be limited to two pages .

1. State in which the project is located.
2. County in which the project is located.
3. U.S. Congressional District No.(s) in which the project is located. This is the U.S. Congressional District, not the State district.
4. U.S. Congressional District Member's Name(s). This is the U.S. Congressional District representative, not the State legislature.
5. Project Designation (Title) - This should be the description of the project as listed in the Joint Explanatory Statement accompanying the Consolidated Appropriations Act.
6. Project Location (Service Termini and Ports) - Describe the ferry boat operation including the terminal locations, public road connections and name of the water crossing. A statement must be included for ferry boat operations carrying motorized vehicles, describing the link in the roadway system. Clearly identify any "passenger only" ferry service, and explain how the ferry service is linked to public transportation or is part of a transit system. Also, for each project, indicate if the project is part of an existing link or service, or if it is new service. Also identify if the ferry operates in domestic, foreign or international waters.
7. Ownership/Operation - Specify which of the following apply (a, b, or c):
   1. The boat or terminal is publicly owned. The term "publicly owned" means that the title for the boat or terminal must be vested in a Federal, State, county, town, or township, Indian tribe, municipal or other local government or instrumentality.
   2. The boat or terminal is publicly operated. The term "publicly operated" means that a public entity operates the boat or terminal.
   3. The boat or terminal is "majority publicly owned" (as opposed to public owned). This means that more than 50 percent of the ownership is vested in a public entity. If so, does it provide substantial public benefits? Documentation of substantial public benefits, concurred in by the division office, is required for ferry facilities that are in majority public ownership.
8. Proposed Work - Describe project work that is to be completed under this particular request, and whether this is a complete project or part of a larger project. Please ensure that the proposed work falls within the description of the designated project (Item 5 above).
9. Eligibility - Describe how the proposed project meets the statutory eligibility requirements of 23 U.S.C. 147(a) and 23 U.S.C. 129(c). If the project does not meet these eligibility requirements, please note that here.
10. Amount of Federal FBD Funds Requested -Indicate the amount of Federal FBD funds being requested for the fiscal year. This should be the reduced award amount shown in Attachment 1 to the solicitation memo. This reduced amount is the result of the rescission, the obligation limitation applied to the FBD funds in FY 2008, and the required set-aside in 23 U.S.C. 147(d).
11. Project Purpose & Benefits - Each State's request for ferry boat discretionary funds must describe the project benefits and purpose. Particular attention should be given to how the completion of the proposed project will benefit the transportation network. Other benefits may include improved public safety, economic development, community enhancement, etc.
12. Project Schedule -The anticipated project schedule is required, including anticipated contract award and proposed project completion, including information on when the ferry service would be operational.

Announcement of Awards / Allocation of Funds

After the applications are received, it is required that Congress be notified before the funds are allocated to the States. When this Congressional notification process is completed, the Office of Program Administration will issue an announcement by email to all FHWA division offices, announcing the FBD projects that will be funded and the amount of funding for each project.

At that time, States may request that funds be allocated for any projects for which the funds are ready to be obligated. The State transportation agency shall send an email to the FHWA division office indicating the project, the amount requested for allocation, and the date by which the funds will be obligated. The Office of Program Administration will issue the allocation memorandum within a few days of receiving the allocation request.

State Transportation Agency Responsibilities:

1. Coordinate with State, local, and Federal agencies within the State to develop project applications.
2. Ensure that the applications are completed in accordance with the submission requirements outlined above.
3. Submit the applications electronically to the local FHWA division office on time so that the submission deadline can be met.
4. Submit request to FHWA division office for allocation of funds, after awards are announced, and when project funds are ready to be obligated

FHWA Division Office Responsibilities:

1. Provide the solicitation memorandum and this program information to the State transportation agency electronically to facilitate their electronic submission of applications.
2. Request candidate projects be submitted by the State to the FHWA division office electronically to meet the submission deadline established in the solicitation.
3. Review all candidate applications submitted by the State prior to sending them to FHWA Headquarters to ensure that they are complete and meet the submission requirements.
4. Submit the candidate applications electronically to FHWA Headquarters Office of Program Administration as outlined in the solicitation memorandum. Include the following with the transmitting email message:
   1. Statement from the division office that the State's submittal has been reviewed by the division office and that it meets the submission requirements.
   2. State transportation department submission email or letter to the FHWA division office.
   3. Each MS Word two-page application as a separate attachment.
5. Forward award announcement to the State.
6. Forward allocation requests from State to the Office of Program Administration, via email to Larry Beidel (larry.beidel@dot.gov).

FHWA Headquarters Program Office Responsibilities:

1. Solicit applications from the States through annual solicitation memorandum.
2. Review applications and compile appropriate program and project information for the Office of the Federal Highway Administrator.
3. Issue award announcement via email to all FHWA division offices.
4. Allocate funds upon receipt of request from State through the FHWA division office.

FHWA Headquarters Program Office Contact:

Larry Beidel, Highway Engineer, Office of Program Administration
Phone: (202) 366-4653
Fax: (202) 366-3988
Email: larry.beidel@dot.gov