The clock is ticking

Key MAP-21 provisions have yet to be implemented, despite a looming expiration date.

Let’s look at the positives. The US’ Moving Ahead for Progress in the 21st Century Act (MAP-21) is a positive legislative development – a law that secures funds for the repair, maintenance and upgrade of the country’s mass transit systems, roads, rail and bridges.

Thanks to this authorisation, enacted in October 2012, the Federal Transit Administration (FTA) will now have at its disposal $10.6 billion and $10.7 billion for the fiscal years 2013 and 2014 respectively, while the Transportation Infrastructure Finance and Innovation Act (TIFIA) programme saw a significant increase in its funding from about $100 million a year to $750 million in 2013 and $1 billion the year after.

In early 2013, the FTA added two new rules to the authorisation bill which provides for the creation of a pilot programme to expedite project delivery through the use of public-private partnerships (PPPs; P3s) and an expansion of the ‘New Starts’ programme that has the potential to fund not just new-build projects but also ‘core capacity’ projects. Core capacity projects are those which add significant capacity within existing transit systems. Both these programmes fall under the larger FTA Capital Investment Programme.

According to a bulletin released by law firm Allen & Overy in July, these provisions were still pending implementation. Further investigation revealed that the FTA had not yet implemented them and could not provide a timeline for doing so. “FTA plans to seek public comment on proposed implementation approaches later this year,” the agency said, adding that it is in the process of developing parameters for the pilot programme.

Considering that MAP-21 is due to expire in September 2014, it seems odd that the FTA would work towards setting up a programme that, in a best-case scenario, would be up and running just a few months before the legislation and relevant provision expire.

But, as it turns out, this is not uncommon. Michael McLaughlin, vice president of planning and federal affairs at the Chicago Transit Authority (CTA) says that historically, authorisation bills that expire tend to be re-authorised for short periods of time until new legislation is passed. “That’s what happened with SAFETEA-LU where there were ten or so extensions,” he says, referring to MAP-21’s predecessor which was due to expire in 2010 but remained in effect until 2012 when MAP-21 replaced it.

He’s also not surprised that MAP-21’s provisions have not yet been implemented. “We knew that when Congress passed its two-year bill it would take the FTA a long time to run through their legal and other proceedings to get the provisions up and running,” he says, adding that it would be almost impossible to push a core capacity project through the FTA’s three-step process before the two-year authorisation expires.

Asked whether this was cause for concern for the CTA, given the agency’s Red and Purple Line Modernisation – which the agency expects will qualify as a core capacity project – McLaughlin suggests: “No, it doesn’t deter us. But at the same time, we’re remaining vigilant, making sure that the provisions make it into an extension bill or a re-authorisation bill.”

But the question remains: Why pass a short-term law that applies to long-term projects and which calls for programmes that will take longer to implement than the law is in effect?

According to David Narefsky, a partner at law firm Mayer Brown, the answer is simple: “Well, that’s Congress for you.”