This MAP-21 FBP Implementation Guidance has been superseded by  Ferry Boat Program Implementation Guidance as Revised by the FAST Act.

This guidance document applies to MAP-21 funds only. For FAST Act funds see: Ferry Boat Program Implementation Guidance as Revised by the FAST Act

MAP-21 Ferry Boat Formula Program (FBP) Implementation Guidance

U.S. Department of Transportation Federal Highway Administration

Memorandum

On July 6, 2012, the President signed into law P.L. 112-141, the Moving Ahead for Progress in the 21st Century Act. The attached Implementation Guidance provides policy direction on the Ferry Boat Program and provides information on funding, eligible activities, and specific requirements.

If you have any questions, please contact Mr. Peter Kleskovic (202-366-4652) or Mr. Tony DeSimone (317-226-5307) of the Office of Program Administration.

Attachment

Ferry Boat Program (FBP) Implementation Guidance

1. GOVERNING AUTHORITIES

   Section 1121 of the Moving Ahead for Progress in the 21st Century Act (MAP-21) establishes the FBP under 23 U.S.C. 147. The program is subject to the provisions contained in 23 U.S.C. 129(c), which MAP-21 did not amend.

2. FUNDING

   1. Authorization Levels under MAP 21: Section 1121 of MAP-21 authorizes funds for the FBP, amends 23 U.S.C. 147, and provides for the allocation of funds. These funds are allocated contract authority authorized from the Highway Trust Fund (HTF).

      Under MAP-21, FBP funds are distributed to eligible entities based on the number of passengers carried (20 percent), vehicles carried (45 percent), and total route miles (35 percent). Eligible entities are determined in accordance with 23 U.S.C. 129(c).

      The formula will be applied using the latest data collected in the National Census of Ferry Operators (NCFO) as implemented by the Bureau of Transportation Statistics (BTS). The FHWA will use only publicly available data in the allocation of funds. For FY 2013, the data collected in 2010 based on calendar year 2009 operations will be used and may be modified if errors are identified in cooperation with State transportation departments.

      The following amounts are authorized to be appropriated for the FBP through FY 2014:

      FY 2013	$67,000,000
      FY 2014	$67,000,000
      TOTAL	$134,000,000

      The Fiscal Management Information System (FMIS) program code is as shown below:

      M950	Construction of Ferry Boats and Ferry Terminal Facilities, PL 112-141, Section 1121

      The FBP is subject to the provisions on Redistribution of Certain Authorized Funds in Section 1102(f) of MAP-21. This "lop-off" provision requires that not later than 30 days after the date of distribution of the obligation authority, the amount of allocated funds exceeding the amount of obligation authority available for the program is deducted from the program and distributed to the States and made available for purposes under the Surface Transportation Program (STP). Therefore, amounts authorized for the FBP will be subject to lop-off, based on the obligation limitation available for the program.

   2. Period of Availability: FBP Funds are contract authority from the HTF (other than the Mass Transit Account) and will remain available until expended.

   3. Obligation Limitation: FBP funds are subject to the annual obligation limitation imposed on the Federal-aid highway program.

      These funds are subject to August Redistribution in accordance with the provisions of Section 1102(d) of MAP-21. Any balance of funds that will not be obligated by the end of the fiscal year will be withdrawn in August and the obligation authority redistributed to the States. The funds and carryover obligation authority will be returned to the States or territories the following fiscal year.

   4. Federal Share: The Federal share for FBP funds is governed by 23 U.S.C. 147(b). It is limited to 80 percent for a State or Puerto Rico. In accordance with 23 U.S.C. 120(g), the Federal share of any funds made available to the identified U.S. territories is 100 percent.

   5. Other Federal-Aid Funds: Ferry boats and terminal facilities may also be eligible for regularly apportioned STP funds and National Highway Performance Program (NHPP) funds. Additional information may be found in Implementation Guidance for these programs and 23 U.S.C. 133 (as amended by Section 1108 of MAP-21) and 23 U.S.C. 119 (as amended by Section 1106 of MAP-21). These regularly apportioned funds may also be used for approach roads to ferry terminal facilities as defined in 23 U.S.C. 129(b).

   6. Ferry Boat Discretionary Program Funds: MAP-21 replaced the ferry boat discretionary program with a formula program. Discretionary program funds remain available to awarded projects and will be released as those projects are completed or a determination is made to cancel the award.

3. DEFINITIONS FOR THE PURPOSE OF THIS IMPLEMENTATION GUIDANCE

   1. Approach Road. An approach road is a public road that connects the ferry terminal passenger parking, vehicle ramp, or transfer bridge to a Federal-aid highway as defined in 23 U.S.C 101 or a National Highway System (NHS) Intermodal Connector. Approach roads do not include access roads to maintenance facilities.

   2. Control. Control means that a public entity has an interest in the continued operation of the route and oversees the schedules, fares, and operation. This can include a service on a public route that is operated by a private entity under a contract, permit, or other agreement with a public entity.

   3. Disposal. A disposal is any ending of service, use for other purposes, or significant change of service that is not consistent with the eligible operation of a vessel or facility purchased or leased according to 23 U.S.C. 129(c)(6). Long- or short-term lease or sale of a vessel for any other purpose is considered a disposal.

   4. Ferry Boat. A ferry boat is any water transportation vessel, including ships, barges, and hovercraft that transport pedestrians and/or automobiles with passengers (roll-on/roll-off) for public transportation purposes on a fixed route where it is not feasible to build a bridge, tunnel, combination thereof, or other normal highway structure in lieu of such ferry.

   5. Terminal Facility. A ferry terminal facility includes the structures and amenities that directly serve the ferry boat operation. These include passenger parking, ticketing, waiting area, boarding and disembarking facilities, docks, slips, dolphins and shore improvements necessary for docking, administrative space specifically for on-site ferry administration and vessel crew, and ferry vessel maintenance facilities. It does not include approach roads to the terminal facility.

   6. Public Entity. A public entity includes Federal, State or local governmental agencies, Tribal governments, and organizations established by Federal, State or local law with control of ferry boat services, including routes and fares. A public entity does not include any other "not for profit" organization.

   7. Operating authority. The public or private entity responsible for operating the ferry service.

4. ELIGIBILITY

   1. Eligible Projects and Activities

      1. Eligible Entities: Eligible entities are determined in accordance with 23 U.S.C. 129(c). An eligible project and entity must meet all the following conditions:

         1. It is not feasible to build a bridge, tunnel, combination thereof, or other normal highway structure in lieu of the use of such ferry.
         2. The operation of the ferry shall be on a route classified as a public road within the State and that has not been designated as a route on the Interstate System. Included are ferry boats carrying cars and passengers and ferry boats carrying passengers only on a fixed route.
         3. The ferry boat or ferry terminal facility using Federal funds shall be publicly owned or operated, or majority publicly owned (51 percent) if the Secretary determines that the facility provides substantial public benefits.
         4. The operating authority and the amount of fares charged for passage on such ferry shall be under the control of the State or other public entity, and all revenues derived shall be applied to actual and necessary costs of operation, maintenance, and repair, debt service, negotiated management fees, and, in the case of a privately operated toll ferry, for a reasonable rate of return. Reasonable rate of return includes reasonable profit to the private operator when taking into consideration the level of risk that may be involved. "Reasonable" has been defined in 48 CFR 31.201-3 as, "in its nature and amount, it does not exceed that which would be incurred by a prudent person in the conduct of competitive business."
         5. The ferry may be operated only within a State (including the islands which comprise the State of Hawaii and the islands which comprise any territory of the United States) or between adjoining States or between a point in a State and a point in the Dominion of Canada. Except with respect to operations between the islands which comprise the State of Hawaii, operations between the islands which comprise any territory of the United States, operations between a point in a State and a point in the Dominion of Canada, and operations between any two points in Alaska and between Alaska and Washington, including stops at appropriate points in the Dominion of Canada, no part of such ferry operation shall be in any foreign or international waters.
      
      

      2. Location of Projects: Funds allocated under this program may be used only for the specified ferry operation identified in the distribution of funds. If the ferry operation operates in more than one State, the operator may elect to transfer funds to another State to implement a project within that State to, for example, rehabilitate a terminal. See section I below for more information on transferring funds.

      3. Eligible Activities:

         1. Construction of ferry boat and ferry terminal facilities, including ferry maintenance facilities.

         2. Construction, according to 23 U.S.C. 101(a)(4), includes the following applicable activities:

            1. Preliminary engineering, engineering, and design related services directly relating to the construction of a highway project, including engineering, design, project development and management, construction project management and inspection, surveying, mapping (including the establishment of temporary and permanent geodetic control in accordance with specifications of the National Oceanic and Atmospheric Administration), and architectural-related services;
            2. Reconstruction, resurfacing, restoration, rehabilitation and preservation;
            3. Acquisition of rights-of-way;
            4. Relocation assistance, acquisition of replacement housing sites, and acquisition and rehabilitation, relocation, and construction of replacement housing;
            5. Elimination of roadside hazards; and
            6. Improvements that directly facilitate and control traffic flow, such as grade separation of intersections, widening of lanes, channelization of traffic, traffic control systems, and passenger loading and unloading areas.
         
         

         3. The capital cost of leasing a vessel or facilities. Such lease cannot include the cost of operating such ferry.

         4. Temporary ferry operations are not eligible for this program. Temporary ferry operations that are used for maintenance of traffic for a bridge replacement project, for example, would be an eligible activity for the same funds used for the bridge replacement. Temporary ferry operations are also eligible for emergency relief purposes in accordance with 23 U.S.C. 125(d)(2) and 23 CFR 668.

   2. Applicability of Planning Requirements: Projects must be identified in the applicable Statewide Transportation Improvement Program (STIP) or metropolitan Transportation Improvement Program (TIP) pursuant to 23 U.S.C. 135, and they must be consistent with the Statewide and Long Range Transportation Plan and the Metropolitan Transportation Plan(s), if applicable.

   3. Ferries which serve the NHS: Pursuant to 23 U.S.C. 147(g), projects for ferries that serve as a highway link between two points of the NHS must be designed and constructed under all provisions applicable to the NHS.

5. SUBALLOCATION: The FBP funds and obligation authority will be allocated directly to the States or territories based on the latest available data from the NCFO and the formula established in 23 U.S.C. 147, revised as necessary to take into account errors and omissions, as of October 1 of the fiscal year, for administration and funding authorization. The funds will be suballocated to specified ferry systems and public entities responsible for developing ferries. Funds are not transferable among these entities. If it is determined that an entity is not eligible for the program, the funds are to be returned and will be redistributed among the remaining eligible entities. New or revised entities may not be added after October 1 of the applicable fiscal year and should be added as part of the latest NCFO conducted by BTS.

6. DISPOSAL: In accordance with 23 U.S.C. 129(c)(6), no ferry for which Federal-aid funds have been used shall be sold, leased, or otherwise disposed of without prior approval of the Secretary of Transportation. This authority has been delegated to the FHWA Administrator. Contact the Office of Program Administration if a disposal is anticipated to occur. The Federal share of any proceeds from a disposition shall be credited to the unprogrammed balance of Federal-aid highway funds of the same class last apportioned to the State. Disposal of terminals and real property should occur in accordance with 23 U.S.C. 156 and 23 CFR Part 710, Subpart D.

7. OTHER USES OF VESSELS, PORTS, MARINAS, OR TERMINALS: The use of Federal-aid funds is limited to capital improvements necessary for and directly attributable to the construction of a functional ferry and ferry terminal. In accordance with 31 U.S.C. 1301(a) and 2 CFR Part 225, Appendix A, Paragraph C, "Federal cost principles," only direct cost items may be used for the purpose of the award. When ferry terminal projects are constructed in conjunction with other uses (cost objectives) such as cruise ships, general marina, museum, and port management facilities, the Federal cost principles require that costs be allocated to the various benefiting uses.

   1. The following are examples of eligibility determinations the FHWA has made concerning the construction of ferry terminals:

      1. Shared space, such as waiting areas, rest room facilities, ticket sales, or crew quarters, are to be allocated proportionately between or among eligible uses directly associated with the provision of the ferry service and the ineligible uses associated with the shared space. General administration space not primarily for the ferry service is not eligible.
      2. If a facility is being constructed for multiple uses, the costs of the shell of the building, heating, ventilation and air conditioning, plumbing, etc., require analysis to determine the portion attributable to the ferry service.
      3. If a dock is to be constructed for the use of cruise or other vessels in addition to the ferry, the construction costs are to be allocated among the defined uses.
      4. Only the terminal parking spaces needed for the ferry service are eligible for reimbursement.
      5. Construction or rehabilitation of maintenance and fueling facilities that are solely for the ferry service and are owned or operated by a public entity, or by a private entity under an agreement with the public entity, are eligible. Cost allocation applies if these facilities serve other ineligible uses.
      6. Operation and maintenance costs (i.e., staffing, regular maintenance of vessels or facilities, fuel, periodic inspections, certifications or permits, such as required by the U.S. Coast Guard, or disposable supplies) are not eligible.
      7. Dredging in the immediate area of the terminal and docks as part of a terminal project necessary for the ferry operation is eligible but requires cost allocation when the dredging location will be used by other vessels.
      8. The cost of the ineligible portion of a project cannot be used for the State or local share of the project costs.
   
   

   2. Any use of the facility not otherwise considered and allocated at the time of authorization must be coordinated with HIPA.

8. APPLICABLE FEDERAL-AID REQUIREMENTS: All ferry boat projects are to be constructed in accordance with Title 23 of the United States Code and Title 23 of the Code of Federal Regulations. This includes all planning, environmental, design, authorization, advertising and construction requirements.

9. Transfers: FBP funds may be transferred to another State or another Federal agency to be administered by that State or agency for a project for the specified ferry operation for which the funds were originally allocated. To transfer funds under the FBP, contact the Office of Program Administration. General guidance on fund transfers can be found at https://www.fhwa.dot.gov/legsregs/directives/policy/fundtrans20070719.htm. Section 104(f)(1) of Title 23 (as amended by Section 1105 of MAP-21) will apply to any funds transferred to the Federal Transit Administration for administering transit projects under Chapter 53 of Title 49.